QJornpll ICam ^rljnol IGibtara KF soo.Mgr"'"""'""'*"-"'"'^ ■I iiiniiiiiiiiiiilllllllllinilllllL , , ,,„ 3 1924 018 764 286 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018764286 A MANUAL ELEMENTARY PRACTICE PRACTICAL SUGGESTIONS ON THE BEGINNINGS OF LEGAL PRACTICE BY C. LA RUEjViyNSON OF THE BAR OF PENNSYLVANIA And Lecturer at the Yale Law School ' StSiditt tMfit, <\m atxtno fttUuSo eaifii " INDIANAPOLIS AND KANSAS CITY ' THE BOWEN-MERRILL COMPANY 1897 COPYBIGHT 1897 BY THE BOWEN-MERRILL GO. PBE88 OF CA£IiON & HOIiIiENBBCK, INBIANAPOLIS. THE AUTHOR DEDICATES THIS BOOK TO THE BAR OF LYCOMING COUNTY (THE XXIXth judicial DISTRICT OF PENNSYLVANIA) AMONG WHOSE MEMBERS HE HAS EVER FOUND THE ABILITY, COURTESY AND HIGH PROFESSIONAL HONOR SO CONDUCIVE TO THE AGREE- ABLE PRACTICE OF THE PROFESSION OF THE LAW PREFACE The young lawyer, upon his admission to the bar, may be equipped with a knowledge of the theory and principles of the law, but is usually ignorant of the practical side of his profession. The means whereby he may secure a clientage, the choice of a location, the selection of his library, the care and system of his office, and the opportunities for an association with other lawyers, are uppermopt in his mind, and under active consideration. The ele- ments of professional success, the course of his stud- ies during his novitiate, the ways and means by which he can best acquire a knowledge of practice, the man- ner of doing professional work, as well as an ac- quaintance with its many departments, are all sub^ jects inviting his early and earnest attention. He will find many valuable works on advocacy, proced- ure and the preparation and trial of causes, but little, and nothing in a connected form, relating to many other matters of equal value in his profession arid, perhaps, at this stage of his practice, of even greater benefit to him. These subjects, as well as the others, the author has attempted to discuss in this manual. Those already named, together with some considera- tion of legal ethics and professional compensation, practically treated, hints to the beginner aiding his (V) vi PREFACE. success, a discussion of the legal rights, duties, privileges and responsibilities of the lawyer, and a somewhat extended treatment of the various depart- ments of the office work of the attorney, are in- cluded in the first and second parts of this work. The third division has to do with the preparation of causes and procedure, and the last part with the trial of cases. These have not been given as much elaboration as in other and more complete works on those subjects, the object being to furnish the advo- cate, and particularly the inexperienced, with some practical suggestions applicable to the litigation in which the lawyer may be engaged. The favor accorded the author's course of lectures at the Yale Law School on the Beginnings of Prac- tice, during the past six years, and some demand for the short synopsis furnished his classes, have em- boldened him to offer this work to the profession, in the hope that it may meet with the approval of the experienced and prove helpful to the youthful practitioner. C. La Rue Munson. Williamsport , Pennsylvania, February, 1897. TABLE OF CONTENTS PART I OF THE LAWYER, GENERALLY CHAPTER I. THE BLEMENTS OF SXJCCESS. SECTION. PAGE. 1. The dignity of the profession 1 2. Integrity 2 3. Chief Justice Sharswood's insistence for professional in- tegrity 4 4. Industry 5 5. The secret of professional industry lies in conserving time 6 6. Energy 6 7. Promptness 8 8. The modern lawyer must work expeditiously 9 9. Perseverance and patience 10 10. Despise not the day of small things 11 11. Professional success is secured slowly 12 12. The assurance of success 13 CHAPTER II. THE LAW STUDENT, AND THE BEGINNEE's STUDIES. 13. The law student's general education 16 14. Chitty's educational qualifications of the attorney 17 15. The law student's preliminary examination 19 16. Law schools and registered students 20 17. The beginner's legal knowledge 21 (vii) yiii TABLE OF CONTENTS. SECTION. PAGE. 18. His legal studieB after admission to the bar 22 19. Case law 23 20. The federal and state constitutions 23 21. Statute law 25 22. An example of a statutory change of a common rule 26 23. Federal statutes 27 24. Practice in the state courts , 27 25. A skillful practitioner is a good lawyer 28 26. Federal practice 29 27. Learning practice outside of text-books 30 28. The reason for the rule of practice must be mastered 31 29. Forms of procedure and conveyancing 32 30. Rules of court 33 31. Leading cases and legal literature 34 82. Rhetoric, logic and forensic oratory 34 33. Professor Washburn's remarks on rhetoric and oratory. 35 34. Moot courts, mock cases and quiz clubs 37 35. Book-keeping, accounts, and business and banking methods 38 36. Business men make the best clients 39 CHAPTER III. CHOOSING A LOCATION. 37. The importance of this choice 41 38. His course when the choice has been made 42 39. City or country? 42 40. A specialty in the profession better followed in a large city 44 41. The choice of a smaller city 44 CHAPTER IV. LAW PARTNERSHIPS. 42. Advantages of association with an established practi- tioner 46 43. Some disadvantages in such an association 47 44. Danger of losing confidence in himself 48 45. Value of self-reliance 49 46. Partnerships between lawyers of equal experience 50 47. The growth of law-partnerships 51 TABLE OF CONTENTS. jx CHAPTER V. LEGAL ETHICS. SECTION. PAGE. 48. The imperative necessity of the lawyer's obedience to ethics 52 49. Sharswood's Legal Ethics 53 50. The prohibitions of the Noblesse de la Kobe 55 51. Those to -whom the lawyer owes duties 56 52. The lawyer's duty to the court 56 53. Improperly influencing the court or jury 57 54. To use no falsehood or deceit 58 55. The lawyer's duty to his professional brethren 59 56. The lawyer's success is promoted by the respect of the profession 60 57. Friendships at the bar conducive to professional em- ployment 61 58. The lawyer's duty to his client 62 59. The lawyer is the keeper of his client's conscience 63 60. Choosing and refusing causes — The ethics of defending the guilty 63 61. The lawyer is not required to prosecute an unjust cause 64 62. Professional compensation — The honorarium 65 63. The right of the lawyer to compensation '. 66 64. Retainers and contingent fees 67 65. Ethical rules governing contingent fees 68 66. Compensation should be commensurate with the serv- ices rendered 69 CHAPTER VI. THE LEGAL EIGHTS, DUTIES, PRIVILEGES AND RESPONSIBILITIES OF THE LAWYER. 67. The lawyer's official titles 71 68. The status of the lawyer and his admission to practice.. 72 69. The jurisdiction of the court over an attorney — Suspen- sion, disbarment and attachment 73 70. The lawyer's privileges and disabilities 75 71. Professional communications 77 72. The authority of the attorney 78 73. The liabilities of an attorney at law to third parties 79 74. The lawyer's responsibility to his client 80 75. The lawyer's right to receive compensation 81 X TABLE OF CONTENTS. SECTION. PAGE. 76. Attorney's retaining lien 84 77. Attorney's charging lien 84 CHAPTER VII. PRACTICAL HINTS TO THE BEGINNER. 78. Knowledge acquired by experience 86 79. Economize time 87 80. Be accurate ; 88 81. Be cool and self-possessed 89 82. Maintain a thorough system 90 83. Cultivate a courteous and gentlemanly manner 91 84. Avoid speculations 92 85. Promptly attend to your correspondence 93 86. Cultivate the acquaintance of other lawyers 93 87. Avoid politics 94 88. Professor "Washburn's advice 95 PART II THE LAWYER IN HIS OFFICE CHAPTER VIII. THE OPPICE LAWYER AND HIS OPPICB. 89. The office lawyer 97 90. His office and its location 98 91. Value of good offices 99 92. The office appointments and furnishings 99 93. Clients and visitors impressed by a good office 100 94. Offices should be neatly and cleanly kept 101 95. Good offices, good fees 102 CHAPTER IX. THE lawyer's DOCKETS, BOOKS AND PAPERS. 96. The system of the office 104 97. Dockets IO5 98. Other office books 108 TABLE OF CONTENTS. ; xi SECTION. PAGK. 99. Office papers 109 100. Value of keeping receipts 110 CHAPTER X. THE lawyer's LIBEAET. 101. Public and club libraries 112 102. The private law library 113 103. Text-books; their test 114 104. Text-books; the order of their purchase 115 105. Eeports 116 106. The cost of such a library 118 CHAPTER XI. GIVING PROFESSIONAL ADVICE. 107. The duties of the office lawyer 119 108. Responsibility in advising others 120 109. The lawyer's ethical position in advising others 121 110. Mastery of the facts necessary to properly advise 122 111. Avoid hasty and immature opinions 123 112. Written opinions 125 113. Advise with judgment and discretion 125 114. Cases involving small amounts should be compromised. 126 115. Advising compromises 127 116. Other reasons for advising compromises 129 CHAPTER XII. DEAWING LAST WILLS AND TESTAMENTS. 117. Knowledge of testamentary law required 131 118. Statutory requirements for wills 132 119. The intention of the testator controls 132 120. Competency — Undue influence 133 121. Attesting witnesses 133 122. Powers given the executor 134 CHAPTER XIII. PEEPAEING CONTEACTS. 123. Skill required in drawing agreements 135 124. The outline of a contract 136 125. Secure all the facts, and include all the stipulations 137 xij TABLE OF CONTENTS. SBCTION. PAGE. 126. Use words expressing the intention of the parties 137 127. Be sare the agreement is understood by the parties 138 128. Agreement between htigants 138 129. Legible agreements — Duplicates 139 CHAPTER XIV. CONVEYANCING. 130. Conveyancing forms part of the beginner's work 140 131. Difficult conveyancing 140 132. An ancient deed 141 133. Conveyancing requires accuracy 142 134. Execution by attorney in fact 143 CHAPTER XV. SEARCHING TITLES, AND MAKING ABSTRACTS. 135. Care required and responsibility incurred in searching and abstracting titles 144 136. Searches made in three ways 145 137. The elements of a recorded title 146 138. Continuation of the search of title 149 139. Various modes of acquiring title 149 140. Adverse conveyances • 151 141. Mortgages 152 142. Judgments 153 143. Mechanics' liens 153 144. Public liens 154 145. Taxes 154 146. Attachments 154 147. Lis pendens 155 148. Decedents' debts 155 149. Other encumbrances 155 150. Exceptions to a certified abstract of title 155 CHAPTER XVI. SETTLING ESTATES OP DECEDENTS AND INSOLVENTS. 151. Settling estates 158 152. Decedents' estates 158 153. Insolvents' estates 160 154. Trustees, guardians, etc 161 TABLE or CONTENTS. xiii CHAPTER XVII. FORMATION AND PROFESSIONAL CARE OF CORPORATIONS. SECTION. PAGE. 155. Corporation clients 162 156. Preparing corporation charters, by-laws, etc 162 157. Professional care of a corporation 163 CHAPTER XVIII. COLLECTION OF CLAIMS. 158. The beginner's business usually that of collecting claims 165 159. Mercantile collections 166 160. A thorough system needed in commercial collections 167 161. Collection and mercantile agencies 167 162. Published lists of attorneys 169 163. Bates for collections, and division of fees 169 164. Saggestions for managing collections 170 PART III PREPARATION OF CAUSES AND PROCEDURE CHAPTER XIX. THE ADVOCATE, AND PREPARATION OF HIS CASES. 165. Prominence of the trial lawyer 173 166. Thorough preparation of a cause is essential 174 167. Value of early preparation 174 168. Division of the preparation into the facts and the law of the case 176 CHAPTER XX. PREPARING THE EVIDENCE. 169. Know all the facts of the case 177 170. Examination of the client 179 171. Value of an early examination of the witnesses 180 xiv TABLE OF CONTENTS. SECTION. PAGE. 172. The examination of the witnesses 181 173. Secure facts, rather than inferences 182 174. Cautioning witnesses 183 175. Training witnesses 183 176. Training the witnesses for cross-examination 184 177. Witnesses must not be influenced 186 178. Honest witnesses are the best 187 179. Witnesses' characteristics and temperaments must be studied 187 180. Clients' and witnesses' general reputation and charac- ter 188 181. Statements of witnesses usually stronger than their tes- timony at trial 189 182. Documentary proof 190 183. Construing writings 191 184. Maps, plans, etc 191 185. Digesting the evidence — Ascertaining the strong points. 191 186. Arranging the evidence 192 187. The probabilities of facts 193 188. The brief of the facts 193 189. Chitty's rules for preparing the brief of facts 194 CHAPTER XXI. PREPARING THE LAW. 190. The theory of the case 198 191. The theory must be settled at the outset 200 192. Instances of selecting improper theories 200 193. Settling the principles of law governing a cause 201 194. Knowledge of the principles of the law essential to the lawyer 202 195. DiflSculties of ascertaining the subjects of the law cover- ing a case 203 196. Helps in determining the law of a case 204 197. Want of uniformity in naming legal subjects 205 198. A case illustrating the subjects of law to be examined... 205 199. Statute law 207 200. Text-books 208 201. Law periodicals 210 202. Case law.... 210 203. Selection and discrimination of cases 211 204. When a decision is not an authority in a case 212 TABLE OF CONTENTS. xv SECTION. PAGE. 205. Criticism of cases 213 206. The other side of the case should also be prepared 214 207. The brief of the law 215 208. A thorough brief needed where questions are reserved.. 216 209. Preserving briefs for future use 217 CHAPTER XXII. SELECTING THE REMEDY — JURISDICTION AND CHOOSING THE FORUM. 210. Selecting the remedy 218 211. Jurisdiction 220 212. Local and transitory actions 221 213. When and how questions of jurisdiction can be raised.. 221 214. Choosing the forum 222 215. Court or jury? 223 216. Change of venue 225 217. Choosing the forum ; state or federal courts? 225 218. Choosing the forum — Arbitration 226 219. Practice in submitting causes to arbitration 228 CHAPTER XXIII. PRECAUTIONARY MEASURES AND PRELIMINARY STEPS. 220. Precautionary measures are needed to prevent litigation, or to assure its success 230 221. Notice 231 222. Various preventive and precautionary notices 232 223. Demand 233 224. Instances where a demand is necessary or advisable 234 225. Tender or offer to perform 235 226. Special contracts requiring the performance of condi- tions precedent to actions at law 236 227. Admissions of fact 237 228. Notice before action 238 229. Mr. Harris' suggestions for notice of an intended action •■ 238 230. Preliminary steps— Mr. Chitty's questions 240 CHAPTER XXIV. BRINGING THE ACTION, PROCESS AND PROCEDURE. 231. The parties to the action 244 232. The writ, or summons 246 xvi TABLE OF CONTENTS. SECTION. PAGE. 233. Service 247 234. Auxiliary proceedings 247 235. Attachment and garnishment. 248 236. Injunction 248 237. Lis pendens 249 238. Appearance 249 239. The declaration, statement or complaint 250 240. The art of pleading 251 241. What is to be avoided in the declaration, or complaint.. 252 242. The defendant's plea, answer or demurrer 253 243. Bills of particulars and motions to make pleadings more definite 266 244. The issue 257 245. Depositions 258 246. When secondary evidence of writing is permitted 259 247 . Compelling the production of documents 260 248. Oyer, or inspection of documents or books 261 249. Inspection of persons and things 262 250. Views by the jury 262 251. The danger to the defendant in forcing a case to trial.... 263 252. Dr. Warren's advice in this matter 264 253. Continuance of the case 265 254. Change of venue 266 255. Subpoenaing the witnesses 266 256. The jurors and the panel 267 257. Dr. Warren's advice as to examining the panel 268 PART IV THE TRIAL OF CAUSES CHAPTER XXV. THE ORDER OF THE TRIAL. 258. The eve of trial 271 259. Compromises often offered at this time 272 260. The situation of those about to take part in a trial 272 261. The order in which a case is tried 274 TABLE OF CONTENTS. xvii CHAPTER XXVI. SELECTING THE JUKY. SECTION. PAGE. 262. The panel 276 263. The qualifications of a juror 277 264. Persons exempt from jury service 277 265. Challenges to the array or panel 278 266. Peremptory challenges 278 267. Challenges for cause 280 268. Grounds of challenges for cause 281 269. Personal hostility or actual bias 285 270. Grounds for exclusion of a juror for bias 286 271. Exclusion by reason of a formed or expressed opinion... 288 272. Trying challenges 289 273. When the right to challenge has been waived 291 CHAPTER XXVII. OPENING THE CASE TO THE JURY. 274. The right to open and close 293 275. The value of the opening address — First impressions 294 276. Benefit gained by thus outlining the case 295 277. The English practice as to the opening 295 278. The opening addresses in the Tichborne case 296 279. Of what the opening should consist 297 280. Mr. Justice Miller's suggestions as to the opening ad- dress 297 281. Mr. Cox's advice 298 282. Mr. Cox's advice continued 300 283. Exaggerations and overstatements to be avoided 301 284. Secure the attention and interest of the jury 302 285. The defendant's opening 303 286. Motion to dismiss the case, or for verdict, on the open- ing 304 CHAPTER XXVIII. THE BXAMINATION-IN-CHIEP. 287. The order of proof 306 288. The orderly arrangement of the evidence 307 289. The order of the witnesses 309 290. Examine the best witness first 309 ii xviii TABLE OF CONTENTS. SECTION. PAGE. 291. The advocate's manner in examining the witnesses 310 292. The proper method of conducting an examination-in- chief 311 293. Avoid leading questions 312 294. Avoid over-examination 313 295. David Paul Brown's Golden Rules for the examination of witnesses 314 296. The examination of special or peculiar witnesses — The expert 317 297. The timid and inexperienced witness 318 298. The bold and confident witness 318 299. Witnesses whose testimony fails from the preliminary examination 319 300. The dull and stupid witness 320 301. Notes of the evidence 320 302. Offers of evidence and objections 322 CHAPTER XXIX. CEOSS-EXAMINATION. 303. The difficulties in cross-examining witnesses 324 304. The objects of cross-examination 326 305. Actual and apparent cross-examination 326 306 . When cross-examination is not advisable 327 307. Danger of assisting the other side by cross-examination 328 308. Stupid or timid witnesses should not always be cross- examined 329 309. The demeanor of the advocate in cross-examining 329 310. The advocate's course while his opponent is examining- . in-chief 331 311. What he should observe during the direct examination.. 331 312. How to cross-examine 332 313. Ascertain the motive of the witness 333 314. Cross-examination must have an object 334 315. Avoid letting the witness know that his falsity has been detected 335 316. Separate inferences from facts 335 317. Avoid repetition of questions asked in chief 336 318. Do not always cross-examine for explanations 337 319. Treat the honest witness with fairness 337 320. The wisdom of knowing when to stop 338 321. David Paul Brown's rules for cross-examination 338 TABLE OF CONTENTS. xix CHAPTER XXX. SOME CLASSES OF WITNESSES, AND HOW TO CKOSS-EXAMINB THBM. SECTION. PAGE. 322. The truthful witness 342 323. The untruthful witness 343 324. How to discern the untruthful witness 343 825. Ascertain the surrounding circumstances 344 326. Dislocate the train of ideas of the witness 346 327. The witness who exaggerates 346 328. Instances of exaggerations 347 329. The witness who does not remember 348 330. The cunning witness 349 331. The expert witness 349 CHAPTER XXXI. THE RE-EXAMINATION. 332. Duties of the advocate while his witnesses are being cross-examined 351 333. The purpose of a re-examination 352 334. Showing the entire transaction 353 335. New matter developed in the cross-examination, or in the re-examination 354 336. The course to be pursued in the re-examination 355 337. When a re-examination is to be omitted 356 338. How to properly re-examine .• 356 339. Explaining away doubts raised by the cross-examination 357 CHAPTER XXXII. IMPEACHMENT OP WITNESSES. 340. Impeachment by destroying credibility without attack- ing general character 359 341. Impeachment by proving contradictory statements 360 342. Impeachment by attacking the character or general reputation of the witness 361 343. Laying the grounds for an attack upon character or reputation 361 344. Cross-examining impeaching witnesses 362 XX TABLE OF CONTENTS. CHAPTER XXXIII. takingVhb cask from the juky. section. page. 345. Determining the defendant's course of action 364 346. The various means of taking a case from the jury 365 -347. The grounds for a nonsuit, etc 366 -348. What is admitted by a motion for a nonsuit 367 ■ 349. When and how the motion is to be made 367 -350. Saving error on motion to take case from the jury 368 351. The defendant's evidence 368 CHAPTER XXXIV. INSTRUCTIONS TO THE JURY. 352. Requests for instructions 370 353. Early preparation of requests for instructions 371 354. Importance of careful preparation of requests 371 355. When the requests are to be made 372 356. Exceptions to instructions 372 CHAPTER XXXV.3 ARGUMENT OF THE LAW. 357. Preparation of legal arguments 374 358. Importance of clearness in statement 375 359. The nature of the oral argument 375 360. What is to be avoided in the legal argument 376 CHAPTER XXXVI. THE ADDRESS TO THE JURY. 361. Value of oratory to the lawyer 379 362. Preparation for the address 379 363. Value of a brief of the facts 380 364. The benefit of writing out the address 380 365. Preparation required to properly arrange the evidence.. 381 366. Convince the jury by earnestness 382 367. Make yourself one of the jury 382 368. Language to be used in the address 383 369. Avoid exaggerations 384 370. Do not ilatter the jury 384 371. The courtesy of the advocate 385 372. The art of advocacy 385 TABLE OF CONTENTS. xxi SECTION. PAGE. 373. Illustrations and examples 387 374. Narration of the circumstances 388 375. Explanations and comparisons 389 376. The probability of facts 390 377. Jurors are won by facts within their experiences 390 378. Defending facts seemingly improbable 391 379. Refutation of the antagonist's positions 392 380. The indirect attack is the best 393 381 Attacking the evidence of opposing witnesses 394 382. Attacking the whole case by destroying the evidence of a material witness 395 383. Overcoming prejudice 396 384. The address to the jury on behalf of the defendant 397 385. Where the first attack should be made 398 386. Pointing the road to a compromise verdict 398 387. The conclusion of the address 399 CHAPTER XXXVII. DUTIES AFTER VERDICT — NEW TRIALS — APPEALS. 388. The charge of the court 400 389. The verdict 400 390. Duties after verdict 401 391. Motion for a new trial. 402 392. Appeals 404 393. Let courage ever be your motto 404 TABLE OF CASES [References are to Pages. '\ A Aitkin, /re re, 4 Barn. & A. 47 74 Albrecht v. Walker, 73 111. 69 287 Alhauser V. Butler, 57 Fed. Rep. 121 81 Anderson V. State, 63 Ga. 675 284 Anderson v. State, 5 Ark. 444 277 Andrews V. Morse, 31 Am. Dec. 752 85 Anon, 2 Halst. N. J. 162 74 Anson v. Dwight, 18 Iowa 241 287 Argent V. Darrell, 2 Salk. K. B. 648 284 Arnold V. State, 9 Tex. App.435 284 Asbury Life Ins. Co. v. Warren, 66 Me. 523 289 Attorney-General v. Skinners, 8 Simons 377 75 B Babbit v. Bampus, 73 Mich. 331 '. 81 Bailey V. Trumbull, 31 Conn. 581, 583 282,283 Baker v. Com., 10 Bush (Ky.) 592 74 Balbo V. People, 80 N. Y. 484 287 BalBbaugh V. Fraser, 19 Pa. St. Rep. 95 77, 84, 283 Bank V. Leavens, 20 Conn. 87 283 Bank v. McCandless, 6 County Court Rep. (Pa.) 327 76 Bates V. Voorhis, 20 N. Y. 325 79 Bearsonv. State, 84 Miss. 602 285 Bibb V. Reid, 3 Ala. 88 280 Bigelowv. Sprague, 140 Mass. 425 283 Billings V. McCoy, 5 Neb. 187 372 Blaine v. Chambers, 1 S. & R. 169 58 Block V. State, 100 Ind. 357 284 (xxiii) XXIV TABLE OF CASES. [^Beferences are to Pages. 1 Bohenan v. Peterson, 9 Wend. (N. Y.) 503 75 Bowman v. Phillips, 13 Am. St. Eep. 297, 300 83 Bowman v. Talman, 27 How. Pr. 212 82 Bradshaw V. Hubbard, 1 Gilm. (111.) 390 284 Bradstreet v. Everson, 72 Pa. St. Eep. 124 82 Braine v. Spalding, 52 Pa. St. Rep. 247 82 Brazleton v. State, 66 Ala. 96 284 Brittain v. Allen, 2 Dev. (S. Car.) 120 286 Brockett v. Norton, 4 Conn. 524 81 Brook V. Montague, Cro. Jac. 90 76 Brown v. Bulkley, 14 ISl. J. Eq. 451 82 Brown V. State, 70 Ind. 576 292 Brown v. Wheeler, 18 Conn. 199 284 Burns V. Allen, 2 Am. St. Rep. 847,862 74 Barrel v. Jones, 3 Barn. & Aid. 47 75 Burt V. Panjaud, 99 U. S. 180 290,292 Butler V. State, 97 Ind. 378 287 Cain V. Ingham, 7 Cow. (N. Y.) 478 283 Carew v. Howard, 1 Root (Conn.) 323 283 Carey v. Chicago, etc., Co., 61 Wis. 71 372 Carmon v. Bullock, 26 Ga. 431 291 Carmon v. Newell, 1 Denio (N. Y.) 25 283 Carver, Exparte, 1 Phila. E. 507 58 Casey v. March, 30 Texas 180 84 Castle's Case, 16 Vesey Jr. 412 75 Catasaqua Mfg. Co. v. Hopkins, 144 Pa. St. Eep. 30 286 Caverly v. McOwen, 123 Mass. 574 81 Central R. R. Co. v. Mitchell, 63 Ga. 173 284 Chapman v. Chapman, L. R. 9 Eq. Cases 276 81 Chapman V. McCormick, 86 N. Y. 479 372 Chase v. Jennings, 38 Me. 44 283 Chase V. Heaney, 70 111. 268 81 Chess V. Chess, 1 P. & W. (Pa.) 32 286 Cheverius v. Com., 81 Va. 787 282 Chicago E. R. Co. v. Fisher, 144 111. 618 290 Churchill V. Churchill, 12 Vt. 661 283 Citizens' Assn. v. Friedly, 123 Ind. 320. 81 Cleage V. Hyden, 6 Heisk. (Tenn.) 73 282 Clews V. Bank, 105 N. Y. 397 305 TABLE OF CASES. xxv [Beferences are to Pages. 1 Clinton v. Englebrecht, 13 Wall. 434 292 Commissionera v. Clark, 94 U. S. 278, 284 367 Com. V. Brown, 9 Am. St. Rep. 746 265, 286 Com. V. Hill, 4 Allen (Mass.) 591 285 Com. V. Joliffe, 7 Watts (Pa.) 585 284 Com. V. Moore, 143 Mass. 136 282 Com. V. Poisson, 157 Mass. 510 287 Coopwood V. Baldwin, 25 Miss. 268 82 Coster V. Watson, 15 Johns. 535 77 Cox V. Livingstone, 2 W. & S. 103 82 Cox V. Sullivan, 7 Ga. 144 81 Craig V. Scott, 1 Wend. 35 77 Crisupv. Grosslight, 79 Mich. 380 305 Crooker V. Hutchinson, 1 Vt. 73 82 Crosbie v. Murphy, 8 Ired. C. L. 301 82 Cummins V. Heals, 24 Kan. 600 81 Cushman v. Brown, 6 Paige (N. Y.) 539 75 D Dailey v. Gaines, 1 Dana (Ky.) 529 283 Daniels V. City of Lowell, 139 Mass. 56 291 Davis V. Allen, 11 Pick. (Mass.)466 287- Davis V. Hunter, 7 Ala. 135 288 Day V. Savage, Hobart, King's Bench, 85 283 Dearborn v. Dearborn, 15 Mass. 316 81 Dearmond V. Dearmond, 10 Ind. 191 283 Delano's Case, 42 Am. Rep. 557 74 Den V. Clark, 1 N. J. L. 446 , 283 Dennett v. Cutts, 11 N. H. 163 84 Denver, etc., R. R. Co. v. Driscoll, 12 Colo. 520 286 Dew V. McDevitt, 31 Ohio St. 139 289 Diven v. City of Elmira, 51 N. Y. 506 281, 282 Dorrance v. Hutchinson, 22 Me. 357 81 Drais v. Hogan, 50 Cal. 121, 81 DuBois's Appeal, 38 Pa. St. Rep. 231 84 Dunn V. State, 7 Tex. App. 600 284 E Earl Cholmondley v. Lord Clinton, 18 Vesey, Jr., 261 75 Eggleston v. Boardman, 37 Mich. 14 81 xxvi TABLE OF CASES. {^Beferenbes are to Pages.'] Elbin V. "Wilson, 33 Md. 135 289 Ensign V. Harvey, 15 Neb. 330 281 Essex V. McPherson, 64 111.349 282 Ex parte Carver, 1 Philadelphia R. 507 58 2 J'aiparte Garland, 4 Wall. 333 v Exparte Pemberton, 18 Ves. 282 84 Exparte Sterling, 16 Ves. 258 84 ExparteB. &H., 95Pa. St. Rep. 220 74 Fahnestock v. State, 23 Ind. 231 288 Favillev. Shehan, 68 Iowa 241 291 Fenaille v. Coudert, 44 N. J. Law 286 82 Ferriday v. Selser, 4 How. (Miss.) 506 284 Fisher v. Phila., 4 Brewster (Pa.) 395 281 Fitch V. Scott, 3 How. 86 (S. C. 34 Am. Dec. 89,96) 81 Fleeson v. Savage Mining Co., 3 Nev. 157 282 Flint V. Pike, 4 Barn. & Cress. 473 76 Footv. Morgan, 1 Hill (N. Y.) 654 283 Freeman V. People, 4 Denio (N. Y.) 9 286 Fulweiler v. St. Louis, 61 Mo. 479 282 Funk V. Ely, 45 Pa. St. Rep. 444 283 G Gambert v. Hart, 44 Cal. 542 81 Gardner v. Lanning, 3 N. J. Law 231 282 Garland, Exparte, 4 Wall. 333 72 Garr v. Selden, 4 N. Y. 91 76 Georgia R. R. Co. v. Hart, 60 Ga. 550 283 Gibbs V. Loomis, 10 Johns. 463 75 Gibson v. Wyandotte, 20 Kan. 156 282 Gilbert v. Williams, 8 Mass. 57 81 Godefrey v. Jay, 7 Bing. 413 80 Godfrey v. Dalton, 6 Bing. 460-467 80 Goodman V. Walker, 30 Ala. 482 81 Goshen v. England, 119 Ind. 368 282 Granger v. Batchelder, 54 Vt. 248 (S. C. 41 Am. Rep. 846).... 79 Grason v. Wilkinson, 13 Miss. 268 82 Greenwood v. State, 34 Tex. 334 284 Griggs V. Drake, 21 N. J. Law 169-173 82 Gunter v. Graniteville Co., 18 S. Car. 263 284 TABLE OF CASES. xxvii IBeferences are to Fages.] H Hardy v. Sproule, 32 Me. 310 283 Harrisburg Bank v. Foster, 8 Watts (Pa.) 12 284 Hart V. Frame, 6 CI. & Fin. 192 81 Harter v. Morris, 18 Ohio 492 82 Hartford Bank v. Hart, 3 Day (Conn.) 491 283 Hastings v. Halleck, 13 Cal. 203 81 Hastings v. Lusk, 32 Wend. (N. Y.) 410 76 Hathaway V. Helmer, 26 Barb. (N. Y.) 29 284 Hawes V. Gustin, 2 Allen (Mass.) 404 282 Heath V. Bates, 49 Conn. 342 79 High V. Big Creek Assn., 44 Ind. 356 283 Hill V. Barney, 18 N. H. 607 82 Hill V. Cochran, 15 Colo. 270 284 Hill V. Mendenhall, 21 Wall. 453 79 Hillegaa v. Bender, 79 Ind. 225 81 Hoar V. Wood, 3 Metcalf 193 76 Hodgson V. Scarlett, 1 Barn. & Aid. 232 76 Holker v. Parker, 7 Cranch (U. S.) 436 79 Hollis V. Meux, 69 Cal. 625 76 Holmes v. Nelson, 1 Phila. 217 76 Holmes v. Peck, 1 R. I. 242 82 Hooper v. Welch, 43 Vt. 171 84 Hopping V. Quinn, 12 Wend. (N. Y.) 517, 519 82 Howard V. Osceola, 22 Wis. 453 84 Hubbard V. Eutledge, 57 Miss. 7 284 Hughes V. Cairo, 92 111. 339 289 Hunt V. Printup, 28 Ga. 297 80 Hurlburt v. Bingham, 56 Vt. 368 84 Hutchinson V. State, 10 Neb. 262 287 I In re Aitkin, 4 Barn. & A. 47 74 /re re Bunting, 2 Ad. & Ellis 467 75 JnreKnapp, 85 N. Y. 284 84 In re Mosness, 39 Wis. 509 73 In re Pascall, 10 Wall. 483 84 In re Philbrook, 45 Am. St. Rep. 71, 86 74 In re Wall, 107 U. S. 265....; 74 In the matter of H., 87 N. Y. 521 75 Iverson V. Corington, 1 Barn. & Cress. 160 75 XXViii TABLE OF CASES. [Beferences are to Pages.'] J Jacques V. Com. , 10 Gratt. (Va.) 690.... 282,283 Jacobs V. State, STex. App. 278 284 Jones V. Savage, 10 Wend. (N. Y.) 621 79 Jones V. State, 55 Md. 350 286 K Kendall v. City of Albia, 73 Iowa 243 282 Kennedy v. Brown, 13 Common Bench N. S. 677 82 Kemp V. Burt, 4 Barn. & Adol. 424 80 King V. Fourchey, 47 La. Ann 81 Knapp, /Ji re, 85 N. Y. 284 84 Krause v. Dorance, 10 Pa. St. Eep. 462 82 Kroer v. People, 68 111. 294 288 L Laidler V. Elliott, 3 Barn. & C. 738 80 Lampherv. Philpos, 8 Car. & P. 475 81 Lawlor v. Linforth, 72 Cal. 205 , 287 Lewis V. Peck, 10 Ala. 142 81 Lockhartv. State, 92 Ind. 452 290 Logan V. United States, 144 TJ. S. 263 288 Lord V. Brown, 5 Denio (N. Y.) 345 282 Louisville E. R. Co. v. Mack, 64 Miss. 738 284 Lowenburg V. People, 27 N. Y. 336 289 Lynch v. Com., 16 S. & R. (Pa.) 368 80, 82 Lyles V. State, 41 Tex. 172 281 M Mackey v. Ford, 5 Hurl. & Norm. 792 76 Mardis v. Shackleford, 4 Ala. 494 81 Marion v. State, 29 Neb. 233 283 Marsh v. Coppock, 9 Car. & P. 480 284 Marsh v. Whitman, 21 Wall. 178 81 Mason v. State, 15 Tex. App. 534 286 Maulsby v. Reifsnyder, 6 Atl. Rep. 505 76 Mayor Columbus v. Goetchius, 7 Ga. 139 282 McCampbell v. State, 9 Tex. App. 124 281 McCarthy v. Cass Ave., 92 Mo. 536 287 TABLE OF CASES. xxix IBeferences are to Pages.'] McKelvy's Appeal, 108 Pa. St. Eep. 615 84 McWilliams v. Hopkins, 4 Rawle (Pa.) 382 82 Meeker v. Potter, 5 N. J. Law 586 281 Melaon v. Dickerson, 63 Ga. 682 283 Meritzekv. Caldwell, 2 Abb. Pr. N. S. 407 287 Mima Queen v. Hepburn, 7 Cranch (U. S.) 290 286 Mimms v. State, 16 Ohio 221 292 Monaghan v. Ag'l Inst., 53 Mich. 238 286 Monson V. West, 1 Leonard, King's Bench, 88 283 Montrion V. Jeffreys, 2 Car. & P. 113 80 Moore v. Juvenal, 92 Pa. St. Eep. 484 82 Morgan v. Tener, 83 Pa. St. Rep. 305 82 Morrell v. Graham, 27 Tex. 646 82 Morrison v. McKinnon, 12 Fla. 552 282 Morton V. State, 1 Kan. 468 284 Moschell V. State, 22 Atl. Rep. 50 279 Mosness, In re, 39 Wis. 509 7S Moulton V. Bowker, 115 Mass. 36 78 Mueller V. Rebhan, 94 111. 142 292 Munster v. Lamb, L. R. 11 Q. B. D. 588 76 Murphy v. State, 37 Ala. 142 292 Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285 280 N Nancrede V. Voorhis, 32 N. J. Eq. 524 82 Nelson v. Dickson, 63 Ga. 682 281 National Savings Bank v. Ward, 10 Otto (V. S.) 195 81 Nisbet V. Lawson, IGa. 275 81 O'Brien v. People, 36 N. Y. 276 288 O'Barrv. Alexander, 37 Ga. 201 81 O'Connor V. State, 9 Fla. 215 283 Ogden v. Hughes, 5 N. J. Law 718 75 Oldham V. Sparks, 28 Tex. 425 82 Omaha V. Cane, 15 Neb. 657 281, 287 Omaha R. R. Co. v. Cook (Neb.), 55 N. W. Rep. 943 284 Ormerod v. Dearman, 100 Pa. St. Rep. 561 83 Oscanyan v. Arms Co., 103 U. S. 261 305 Owen V. Western Savings Fund, 97 Pa. St. Eep 47 145 XXX TABLE OF CASES. [^Beferences are to Pages.'] P Paddock V. Wells, 2 Barb. Cli. (N. Y.) 331 283 Page V. Contoocook Valley E. R. Co., 21 N. H.438... 282 Palmer v. Ashley, Ark. 75 81 Pascall, In re, 10 Wall. 483 84 Patterson v. State, 48 N. J. L. 381 285, 289, 290 Pemberton, JExparte,18Ye8.282 84 Peninsula E. E. Co. v. Howard, 20 Mich. 18 282 Pennington v. Yell, 6 Eng. 212 81 People V. Allison, 68 111. 151 74 People V. Alpin, 86 Mich. 393 292 People V. Bodine, 1 Denio (N. Y.) 281-305 287 People V. Bodine, 1 Denio (N. Y.) 281-309 290, 292 People V. Carpenter, 102 N. Y. 238 287 People V. Christy, 2 Abb. Pr. 256 287 People V. Coalbridge, 3 Wend. (N. Y.) 120 77 People V. Fenshaw, 137 N. Y. 68 288 People V. Mather, 4 Wend. (N. Y.) 229 290 People V. McGonegal, 136 N. Y. 62 287 People V. Eeyes, 5 Cal. 347 287 People V. Spencer, 61 Cal. 128 77 Petition of Splane, 123 Pa. St. Eep. 527 23 Philbrook, In re, 45 Am. St. Eep. 71-86 74 Pickens V. Hobb, 42 Ind. 270 290 Pike Co. V. Griffin, 15 Ga. 39 286 Pipherv. Lodge, 16 Serg. & Eawle (Pa.) 114 283, 284 Pitt V. Yalden, 4 Burr. 2060 80 Plank Eoad v. Eailroad Co., 13 Ind. 99 281 Plow Co. V. Deusch, 16 Neb. 384 285 Purvis V. Landell, 12 CI. & Fin. 91 81 Q Quinn v. VanPelt, 56 N. Y. 417 82 R E. V. Edmonds, 4 B. & Aid. 471 291 Eeece V. Eigby, 4 Barn. & Aid. 202 80 Keilly v. Cavanaugh, 29 Ind. 435 81 Respublicav. Eichards, 1 Yeates (Pa.) 480 282 TABLE OF CASES. xxxi [Seferences are to Pages. "} Revill V. Hussey,2Ball & Batty 286 214 Rex V. Cook, 13 St. Tr. 334 284 Rhines v. Evans, 66 Pa. St. Rep. 192 82 Rice V. State, 16 Ind. 298 284 Riddle v. Poorman, 3 P. & W. (Pa.) 224 82 Robbins v. Hill, 12 Pick. 569 79 Robinson V. Randall, 82 111. 521 292 Rogers v. Manufacturers' Improvement Co., 109 Pa. St. Rep. 109 24 Rollins V. Ames, 2 N. H. 349 (s. c. 9 Am. Dec. 79) 291 Roots V. Stone, 2 Leigh 650 82 Rowell V. Boston & Maine R. R. Co., 58 N. H. 514 289 Russell V. Quinn, 114 Mass. 103 291 S St. Johns V. Diefendorf, 12 Wendell (N. Y.) 261 84 St. Louis R. R. Co. v. Lux, 63 111. 523 292 Savage v. State, 18 Fla. 909 279 Savings Bank v. Ward, 10 Otto (U. S.) 195 81 Schmidt v. Chicago, etc., R. R. Co., 83 111. 405 280 Schoeflerv. State, 3 Wis. 823 292 Scott V. Moore, 41 Vt. 205 291 Seaton v. Swem, 58 Iowa 41 : 282 Secor V. Bell, 18 Johns. (N. Y.) 52 75 Sevier v. Holliday, 2 Ark. 512 81 Shelton v. Tiffin, 6 How. (U. S.) 163, (s. c. 12 L. Ed. 387) 79 Shields v. State, 95 Ind. 299 287 Sinerv. Stearne, 155 Pa. St. Rep. 62 82 Skillen v. Wallace, 36 Ind. 319 81 S. & H., Ex parte, 95 Pa. St. Rep. 220 74 Small V. Jones, 6 Watts & Serg. (Pa.) 122 281 Smallwood v. Norton, 20 Me. 83 81 Smedes v. Elmendorf, 3 Johns. (N. Y.) 185 82 Smith V. Commonwealth Ins. Co., 49 Wis. 322 305 Snodgrass v. Hunt, 15 Ind. 274 280 Spalding v. Emery, 149 Pa. St. Rep. 375 83 Spanglerv. Sellers, 5 Fed. Rep. 882 81 Spies V. People, 122 III. 1 (s. c. 123 U. S. 131) 287, 298 Stackpole v. Hennen, 17 Am. Dec. 187 76 State V. Bowden, 71 Me. 89 291 xxxii TABLE OF OASES. [Beferences are to Pages. "] State V. Brady, 107 N. Car. 822 292 State V. Burns, 85 Mo. 47 288 State V. Chapman, 11 Ohio 430 74 State V. Coella, 3 Wash. 99 284 State V. Elliott, 45 Iowa 486 292 State V. Porman, 3 Mo. 412 74 State V. Francis, 76 Mo. 681 277 State V. Gillick, 7 Iowa 287 285 State V. Green, 95 N. Car. 611 290 State V. Hoyt, 47 Conn. 518 292 State V. Ihrig, 106 Mo. 267 290 State V. Jones, 64 Mo. 391 283 State V. Jones, 97 N. Car. 469 292 State V. Ketchey, 70 N. Car. 621 292 State V. Kirk, 95 Am. Dec. 333-340 74 State V. Linde, 54 Iowa 139 289 State V. McDonald, 9 W. Va. 456 284 State V. Nelson, 58 Iowa 208 287 State V. Perry, Busb. (N. Car.) 330 282 State V. Salge, 1 Nev. 455 277 State V. Shaw, 3 Ired. (N. Car.) 532 283 State V. Sheeley, 15 Iowa 404 284 State V. Shields, 33 La. Ann. 991 288 State V. Stoughton, 51 Vt. 362 279 State V. Tuller, 34 Conn. 280 291 State V. Ward, 39 Vt. 225 288 State V. White, 77 U. S. 483 (s. c. 19 L. Ed. 992, 994) 85 State V. Williams, 30 Me. 484 282 Sterling, Ex parte, 16Ves. 258 84 Stevens v. Walker, 55 III. 151 81 Stewart v. Flowers, 44 Miss. 513 „. 84 Stewart v. State, 15 Ohio St. 155 285 Stockley v. Hornbridge, 8 Car. & P. 16 80 Stone V. Segur, 93 Mass. 568 280 Stout V. People, 4 Park Cr. (N. Y.) 132 290 Stowell V. Champion, 6 Ad. & E. 407 80 Strawn V. Cogswell, 28 111.457 286 Strote V. Hinohman, 37 Mich. 490 280 Stubbs V. Breene, 37 Ala. 672 81 Stum V. Hummel, 39 Iowa 478 284 Sulingsv. Shakespeare, 46 Mich. 408 292 TABLE OF CASES. xixiii [Seferences are to Fages.'\ Sutton V. Fox, 55 Wis. 531 281 Suydam v. Vance, 2 McLean 99 (s. c. 23 Fed. Cases 477) 81 Swinfen v. Lord Chelmsford, 5 Hurl. & Norm. 890 81 T Talmadge v. Northrup, 1 Root (Conn.) 455 282 Thatcher v. D'Aguilar, 11 Exch. Rep. 436 75 Tilton V. Wright, 74 Maine 214 (s. c. 43 Am. Rep..578) 79 Towle V. Hatch, 43 N. H. 270 79 Township v. Kirston, 72 Mich. 1 286 Ttallinger V. Webb, 3 Ind. 198 283 u United States v. Borger, 7 Fed. Rep. 193 288 United States v. Hall, 44 Fed. Rep. 883 279 United States v. McHenry, 6 Blachf. (U. S.) 503 290 United States v. Nardello, 4 Mackey (D. C.) 503 277 United States v. Noelke, 1 Fed. Rep. 426 287 United States v. Schackelford, 3 Cranch (C. C.) 178 285 United States Mtge. Co. v. Henderson, 111 Ind. 24 81 V Vannoy v. Gives, 23 N. J. Law 201 283 Varnum v. Martin, 15 Pick. (Mass.) 450 81 w Walker v. Scott, 8 Eng. 644 81 Wall, In re, 107 U. S. 265 74 Wain V. Beaver, 161 Pa. St. Rep. 605 82 Walpole V. Carlisle, 32 Ind. 415 81 Walsh V. Shumway, 55 111. 471 81 Watkins v. Weaver, 10 Johns. (N. Y.) 107 292 Watson "v. Muirhead, 57 Pa. St. Rep. 161 82 Weston v. Com., Ill Pa. St. Rep. 251 289 White V. State, 30 Tex. App. 652 292 Whitehall v. Keller, 100 Pa. St. Rep. 105 79 Wickersham v. Lea, 83 Pa. St. Rep. 416 82 Wiggins V. State, 1 Lea (Tenn.) 738 279 Wilcox V. Plumer, 4 Peters 172 (U. S.) 81 Wilkinson V. Griswold, 20 Miss. 699 82 iii xxxiv TABLE OF CASES. \_Beferences are to Pages.} Williams v. Smith, 6 Cow. (N. Y.) 166 281 Williams v. State, 3 Ga. 453 287, 288 Williams v. State, 32 Miss. 389 288 Wilson V. Coffin, 2 Cush. 316 81 Wilson V. People, 94 111. 299 292 Wilson V. Euss, 20 Me. 83 81 Wingate v. Bank, 10 Pa. St. Eep. 108 82 Winnesheik Ins. Co. v. Scheuller, 60 111. 463 287 Wireback v. Pirst Nat. Bank, 97 Pa. St. Rep. 543 282, 283 Wood V. Stoddard, 2 Johns. (N. Y.) 194 281, 282 Wood V. Wood, 52 N. H. 422 283 Woodbridge V. Raymond, Kirby (Conn.) 280 v 283 Wright V. Carpenter, 49 Cal. 607, 609 263 Y Yanez v. State, 6 Tex. App. 429 291 Young V. Armstrong, 13 Weekly Notes (Pa.) 313 76 ELEMENTARY PRACTICE PART 1. OF THE LAWYER, GENERALLY CHAPTER I. THE ELEMENTS OF SUCCESS. § 1. The dignity of the profession. 2. Integrity. 3. Chief Justice Sharswood's insistence for profes- sional integrity. 4. Industry. .5. The secret of professional industry lies in conserv- ing time. 6. Energy. 7. Promptness. 8. The modern lawyer must work expeditiously. 9. Perseverance and patience. 10. Despise not the day of small things. 11. Professional success is secured slowly. 12. The assurance of success. § 1. The dignity of the profession. — That the lawyer occupies one of the most important positions in society is a truism admitted without denial. Cond- mencing with the advice and direction he gives to those who act as guardians of infants, throughout the life-time of almost every person, as well as in the settlement of their estates after death, the lawyer (1) 2 ELEMENTARY PRACTICE. § 2 is called upon to direct and, in no small degree, to manage the affairs of men in all their relations, domestic, personal and commercial. His duties are not confined to those relating to the preparation and trial of causes, but extend to the associations and connections men have with one another in all the varied affairs of life. For these reasons it is a noble profession, and one into which its members should enter soberly, advisedly, and with due respect to the dignity becoming the position of those in whom great confidence is necessarily reposed, and from whom much is to be expected. § 2. Integrity. — The lawyer's relations to his fel- low-men are, therefore, so much based upon the con- fidence placed in him that the first element needed to secure success in his profession is absolute and un- qualified integrity. This quality is the sine qua non in the attainment of that success. He may possess every other requisite, but without that one he is a failure. Lacking it he may acquire a temporary po- sition in the profession, but a permanent place among its leaders can not be his, while, sooner or later, he must be relegated to its lower planes. Integrity cov- ers so much of what is required of the lawyer, hon- esty, truthfulness, candor, and the evincement of the liighest honor, that the mere statement of the prop- osition is a complete argument for its absolute neces- sity. While, from ignorance or from thoughtlessness, there are those who impugn to the profession, as a whole, a reputation antagonistic to this quality, it will be admitted by all fair-minded men that the members of the legal profession possess the attribute of integrity in as high a degree, and among as many § 2 THE ELEMENTS OF SUCCESS. 3 of its members, as is found in any other walk in life. None are better judges of this than the lawyers them- selves. Their intercourse with their brethren of the bar gives them opportunities to test this quality more frequently, and in its highest and best expressions, than could be had by any others, even by their cli- ents. It is believed the voice of the profession would answer in the aflSrmative the proposition that the promises and undertakings of their brethren are faithfully kept by such a majority of their number that the others count for but little; the few who do not possess their entire confidence being those who are soon cast out of the profession, or are left so far in the rear as to be unworthy, even publicly, the name of lawyers. The very nature of the profession holds its mem- bers to the strictest integrity. No one more than the lawyer himself realizes the imperative necessity for an universal obedience to this rule of conduct. A client lost through want of the highest honor means more than the loss of so much of the law- yer's future business; it assures the certainty that his reputation is likely to be impaired with the com- munity at large; while a lessening of the respect his brethren of the bar hold toward him is certain to lead to professional disgrace. While it is true, as it is of every other profession, that some of its mem- bers are without the possession of the highest honor — and it is the one untrustworthy lawyer who smirches the fair reputation of the whole profession, more so than in any other walk in life — it remains an undeni- ■ able fact that the successful lawyer is, necessarily, one who is honored with the enduring fame of the high- est integrity, for the self-evident reason that the 4 ELEMENTARY PRACTICE. § 3 want of that essential quality must have prevented the accomplishment of his success, and that its loss now would cast him from his high station. Of every great leader of the bar Shakespeare's encomium is well deserved: "First, his integrity- Stands without blemish." § 3. Chief Justice Sharswood's insistence for pro- fessional integrity. — The late Chief Justice Shars- wood, by nature and education so well fitted to treat that subject, thus sums up the lawyer's necessity for integrity: "There is, perhaps, no profession, after that of the sacred ministry, in which a high-toned morality is more imperatively necessary than that of the law. There is certainly, without any exception, no profession in which so many temptations beset the path to swerve from the line of strict integrity; in which so many delicate and difficult questions of duty are continually arising. There are pitfalls and man- traps at every step, and the mere youth, at the very outset of his career, needs often the prudence and self- denial, as well as the moral courage, which belong commonly to riper years. High moral principle is his only safe guide; the only torch to light his way amidst darkness and obstruction. It is like the spear of the guardian angel of Paradise: "No falsehood can endure Touch of celestial temper, but returns Of force to its own likeness.'" ' Sharswood's Legal Ethics, 55. § 4 THE ELEMENTS OF SUCCESS. 5 § 4. Industry. — One of the stern commands to professional success is unceasing labor. No one of the many pursuits of life leads its members over a more rugged path than that of the profession of law. A hard student ever, an indefatigable worker always, must be the successful lawyer. The student can not master the principles of the law without burning the midnight oil; the beginner at the bar can not win clients unless they are assured that he possesses the power and ability to work; the active practitioner holds his business only through constant and un- wearied attention to its demands; and the leader of the bar maintains his prestige only by the continua- tion of the assiduous toil which has had so great a share in placing him in the foremost rank of his pro- fession. Indeed, the higher the position the lawyer obtains the more difficult it is for him to hold it with- out the exercise of his highest talents, one of the most valuable being the capability and desire for un- ceasing labor. There is ever an ultima thule in the profession of the law, because the lawyer has never yet been found, and never will be seen, who has mastered or can know all the law. Perfection may come in the management of some classes of business, in the pursuit of some of the trades, and, possibly, in the practice of some of the professions — so far as any perfection is vouchsafed to man — but there is and can be no supreme excellence in the knowledge or practice of the law. The amount of work which a great leader at the bar can, and, of necessity, does perform -may seem to the beginner to be beyond any- thing he may ever be able to reach, but he will find that his early devotion to his professional labors. 6 ELEMENTARY PEACTICE. § 5 meager though they may seem to him to be, and barren of present results, are the stepping stones to bis ability to secure still greater powers of endurance, the future command of a valuable and lasting client- age, and the attainment of his highest aims, profes- sional success and its many rewards. § 5. Tlie secret of professional industry lies in con- serTing time. — The secret of the successful lawyer's industry is to be found in the fact that he does some- thing during every moment of his professional hours. Let the beginner make it an inflexible rule that he w^ill never permit an hour to be wasted in his ofHce, so long as his time is within his control, and he will have mastered one of the chief elements of profes- sional success. If he have clients he 'should work at their business until it is completed; this will be the means of holding those clients, and, through their recommendation, of securing others. If he is with- out clients, or their business has been completed, let him turn to his books and devote himself to his legal studies, acquiring a knowledge for which he will soon find need. Such a lawyer has never yet failed to win a clientage; it may come more slowly than to others, but it will be permanent and worthy the name. Look around the profession and note, without exception, that the lawyers with many clients are ceaseless work- ers; observe, equally, that the drones are without business. If mottoes were customary adornments of a lawyer's office he could not frame a better one than "Labor omnia vincit." Trite it may be, but true with- out exception. § ^ Energy. — United with industry, indeed, but a higher step in the same direction, is energy. It has § 6 THE ELEMENTS OF SUCCESS. 7 been well defined to be a vigorous operation; words describing in precise language the manner in which a lawyer should perform his professional duties. He may be the very incarnation of integrity, he may be as industrious as the proverbial ant, but to crown both these good qualities he needs to put his whole heart into his work. It is a quality which wins the admiration of his clients, particularly those of the com- mercial class — and in these days of enterprise none are of more value to the lawyer — assures him of their legal business, and, what is equally valuable, their recommendation of his good qualities to others. He needs this quality of energy at all times and under all circumstances. Whether in his office or in court, he should do the work that is set before him with a vigor born of a desire to successfully accomplish his client's work, or to win his case; while, in the latter, if he does not bring it to a successful conclusion, he can rest assured that it is not from want of his own efforts. The lawyer who throws himself into the trial of a case with energy and vigor, and shows that it is having his best efforts, is sure to win the sym- pathy of the court and jury. Nothing dulls a good case so much as a half-hearted advocate who seems to lack interest in his cause, and thereby raises the suspicion that he, himself, is not thoroughly imbued with its justice, and with its right to win. If, on the contrary, the trial lawyer evinces his own belief in his client's positions, he may be sure of attentive listeners, and those who are attentive are already half won to grant him the victory. Energy is con- tagious, and may win by infusing into others some of 8 ELEMENTARY PRACTICE. § 7 the enthusiasm which prevails with him who mani- fests that quality § 7. Promptness. — So closely allied with industry and energy is the quality of promptness that the latter is but a corollary to the former. "We live in so rapid an age — in the days of electricity, the limited express, the stenographer, the telegraph and the telephone, not in the period of the stage-coach and of the slow mail wagon — that the legal profession must keep abreast of the times, or lose its prestige and influence. In earlier years the lawyer's practice greatly differed from that of the present; then he was chiefly engaged in the preparation and trial of causes, many of them slow ejectment cases, in the settlement of estates, and in advising the larger land proprie- tors; following his profession in a quiet, easy-going manner, doing his client's business in his own way, and taking for it his own good time. That class of lawyers is not yet extinct, and may still be found in some parts of the country. We all know such men, famed lawyers too, although living more upon laurels won in the past than in seeking to add fresh victo- ries growing out of the changed relations of the pro- fession. We see such an one engaged, let us say, in the trial of an ejectment case, and consuming time without regard to its value. He rises to his feet to answer objections to a proposed line of examination of a witness; he rises more than slowly, he twirls his eye-glasses for a moment or two, he slowly ejaculates, "May it please the court," he pauses another moment, then, with almost painful slowness, he states his reasons for supporting his offer of evidence, interrupted by long pauses, and by an exasperating § 8 THE ELEMENTS OF SUCCESS. 9 delay in finding and citing his authorities. "When he has finished, it is seen that he lias taken up more time in preliminaries and pauses, absolutely wasted, than he has in saying what he had to say. § 8. The modern lawyer must work expeditiously. — The one we have just described is not the lawyer of the day or of the future. The members of the bar who will succeed now and hereafter in the practice of the law are those who join their legal talents and moral qualities to a diligent dispatch of their profes- sional duties; conducting their business on business principles, economizing time, and doing their work expeditiously. To the beginner, this quality of promptness is of the highest value. As has been said, he will find his best clients among the business men of the community. Such a client, in these days of activity and enterprise, expects his lawyer to do his work with the same promptitude and diligence he finds in the business world. If the young lawyer desires to win and keep legal business, he must do his work expeditiously and in a business method. If, for example, a client ask you to draw a contract, re- member that he wants it to-day, or, very probably, yesterday, not to-morrow. See to it then that he has it at the earliest possible moment. That client, you may expect, will say to others: "Try Mr. A when you want your work done promptly; he is much more satisfactory than Mr. B, who never finishes an agreement until he has been asked for it many times." Such an advertisement is worth a dozen cards in the local newspapers, or the kindly flattery of your friends in the drawing-rooms of society. 10 ELEMENTARY PRACTICE. § 9 § 9. Perseverance and patience. — As a rule noth- ing grows more slowly in its youth than a legal cli- entage. Many a lawyer has become discouraged and retired from the profession for want of the cardinal virtues of patience and perseverance. Clients are won through the growth of the confidence the com- munity has in the lawyer's integrity and ability; therefore, the beginner can not expect, nor is he en- titled to a clientage of much consequence during his early novitiate. The newly admitted lawyer should not consider himself as endowed with all the quali- fications of the tried and experienced lawyer; he is far from being like Minerva who sprang from the brain of Jupiter fully armed and equipped, nor is he by any means entirely ready for the battle of his pro- fessional life, or prepared to try every case, and per- form every kind of legal business, no matter how difficult and intricate they may be. On the contrary, he must continue his legal studies and general cult- ure, in order to fit him for the more active duties of his profession, gaining, in the meanwhile, all the practical experience possible. This is his probation- ary period, and he must not expect, during that time, to secure a volume of business equal to his desires and future expectations; such would be beyond his pres- ent capabilities or experience. His object should be to do, well and satisfactory to himself and to his cli- ents, all that with which he is at first entrusted, and thus to prepare himself, both by the experience thus gained, and by the growth of his client's confidence, to win their and their friends' other and better pro- fessional employment. § 10 THE ELEMENTS OF SUCCESS. H § 10. Despise not the day of small things. — The young lawyer's first business is likely to be small, very small, but he must remember that as a child he learned to creep before he walked, and to walk before he could run. "Whatever he is asked to do, in the honorable line of his profession, let him do with all his might, promptly, thoroughly, and to the best of his ability, resting assured that every bit of work given him to do is a stepping-stone to more impor- tant trusts, and that every client won means many more to follow. His success maybe slow-footed, but it will be certain; while he can comfort himself with the thought that he is not the first to await the ap- pearance of clients and fees. On every side can be found leaders in the profession whose success has been won, not rapidly, but only after many weary years of waiting. It is a truth, without denial, that the lawyer who has slowly increased his clientage is better fitted to maintain and increase it than one whose suc- cess has been more ephemeral. Rockets ascend rap- idly, but the more permanent displays are accom- plished with much greater care and labor, and are not followed by falling sticks. It will be universally admitted that the honorable, hard working, and practical lawyer who perseveres and sticks to it never fails to obtain a valued position in the profession, while those whose versatility and genius may have advanced them more rapidly in the beginning of the race sometimes fail to reach the goal. The fable of the tortoise and the hare is verified in the practice of the law, perhaps more often than in any other pro- fession. There the race is not to the swift, but the 12 ELEMENTARY PRACTICE. § H battle is to the strong, when the strength lies in the ability to persevere in the face of every obstacle. § 11. Professional success is secured slowly. — The advice of Chief Justice Sharswood, and of Dr. War- ren, is worthy the attention of the young lawyer. Said the former: "Let business seek him; and though it may come in slowly and at intervals, and promise in its character neither fame nor profit, if he remembers that it is an important part of his training that he should understand the business he does thoroughly, that he should especially cultivate, in attending to it, habits of neatness, accuracy, punc- tuality, and dispatch, candor towards his client, and strict honor towards his adversary, he will find, it may be safely prophesied, his business grow as fast as it is good for him it should grow, while he grad- ually becomes able to sustain the largest practice without being bewildered and overwhelmed."' Dr. Warren thus addressed the members of the In- corporated Law Society of the United Kingdom: " Do not entertain extravagant expectations of success; if you do, the presumption is immensely strong that you will be disappointed, and that bitterly. He who will walk on tip-toe must soon be fatigued and ex- hausted, and the sooner, the greater his efforts. The strain and tension are unnatural; they can not pos- sibly be sustained. Remember that confidence, from which alone springs professional employment, is a plant of slow growth, which must be very tenderly and patiently watched and nourished. The soil from which it springs must be rich and productive, ' Sharswood's Law Lectures, 57. § 12 THE ELEMENTS OF SUCCESS. 13 being the perception, by others, of your purity and elevation of character, your modest, manly sedate- ness of habits and demeanor, your thorough knowl- edge of business, your incorruptible integrity; in short, your possession of those qualifications which it is the object of these lectures to urge upon you. Think not that this is the work of a moment. Forc- ing here will not do. The gourd that came up in a day, withered in a day. It is really a difficult thing to establish a connection; and you will probably, many of you, find it so, especially in these days of intense competition, when you will see, whichever way you turn your eyes, wherever you go, rivals swarming around you, all as eager as you, and pos- sibly some abler, but many also far less scrupulous. I say this, not to damp your glowing hopes and en- ergies, but only to guide them.'" § 12. The assurance of success. — It can be said, and without contradiction, that success in the pro- fession of the law has never yet failed, and never will be wanting, to those who possess the character- istics of integrity, industry, energy, promptness and perseverance. Ability and genius are potent factors, but greater than these, and naught without them, are those to which we have referred. Their careful observance will be followed by success as surely as day follows night. Dr. Warren, in describing the qualifications of the novitiate in the law, an articled clerk, as he calls him, so well describes the needed qualifications of the lawyer that his words are well worth the careful attention of the beginner in the ' Warren's Duties of Attorneys, 141. 14 ELEMENTARY PRACTICE. § 12 profession. He says: " Speaking with due diffidence, yet after much reflection, and some years' observa- tion and experience, I think that, in judging of the fitness of a youth for being articled to an attorney and solicitor, I should, cseteris paribus, expect a calm and sober temperament, promoting to persever- ance and industry, and not likely to be irritated or disheartened by having to encounter difficulties. I should anxiously look for aptness for study, sound sense, clear-headedness, an energetic will, conscien- tiousness, especially in respect of veracity, and money matters, and if, in addition to these, I saw an affable disposition, an inclination to candor and liberality of sentiment, a courteous and gentlemanly demeanor and carriage, I would say, I have found the youth who will make a figure in his profession, who will prove himself, in due time, a discreet confidential adviser to even the ablest, the most refined, the most fastidious and exacting, the highest in the land, as well as, mark me, to the very humblest, feeling as lively and real an interest in the affairs of the latter as of the former, and never likely to treat with un- feeling indifference or levity, or hear With a disdainful smile, The short and simple annals of the poor, who is likely to shrink from no responsibility whatever, that he ought to bear; not to be daunted by the most formidable obstacles; noi; tempted to go • astray by the most dazzling opportunities. Far be it from me, gentlemen, to say anything so ridiculous as that none ought to enter the profession unless blessed with such endowments and qualifications; ^ 12 THE ELEMENTS OF SUCCESS. 15 but I conceive that this is something like the stand- ard to be kept before one's eye, on such an occa- sion; and that the more of these qualities a youth possesses, the better and brighter his prospects; the more he will be likely to start well in the race of life; to ingratiate himself with all those whom he will have to encounter in professional and social in- tercourse, and on whom it is of vital moment for him to produce a favorable impression." "If, on the other hand, I saw that a youth was of decidedly dull intellect; of a sour, ungracious humor and spirit; an unprepossessing appearance and ad- dress; of an irascible temperament; or of a mercu- rial and flighty disposition; acute enough, possibly, yet incapable of close attention; rash, loose, and hasty in what he said and did; prone to exaggera- tion, even up to the point of disregarding, know- ingly, the dividing line between fiction and fact; with a perceptible tendency to tricking and overreaching — I would say, for heaven's sake stay! Don't send this lad into the law! You are committing a down- right sin in so doing; exposing him to great misery; giving him, if he should be able to get into business, either as a partner or alone, the means of doing grievous mischief, and inflicting much suffering, of ruining himself and others! 'Look then, on this picture — and on this;' and let the proposed attorney's clerk approach as near to the one, as he should be at a distance from the other. "^ ^ "Warren's Duties of Attorneys, 49. CHAPTER II. THE LAW STUDENT, AND THE BEGINNER'S STUDIES. § 13. The law student's general education. 14. Ohitty's educational qualifications of the attorney. 15. The law student's preliminary examination. 16. Law schools and registered students. 17. The beginner's legal knowledge. 18. His legal studies after admission to the bar. 19. Case law. 20. The federal and state constitutions. 21. Statute law. 22. An example of a statutory change of a common law rule. 23. Federal statutes. 24. Practice in the state courts. 25. A skillful practitioner is a good lawyer. 26. Federal practice. 27. Learning practice outside of text-books. 28. The reason for the rule of practice must be mastered. 29. Forms of procedure and conveyancing. 30. Rules of court. 31. Leading cases and literature. 32. Rhetoric, logic and forensic oratory. 3. Professor Washburn's remarks on rhetoric and oratory. 34. Moot courts, mock cases, and quiz clubs. 35. Book-keeping, accounts, and business and banking methods. 36. Business men make the best clients. § 13. The law student's general edncation. — No other profession, so much as that of the law, requires for its successful mastery the broad and deep founda- tion of a liberal education. The lawyer who comes (16) § 14 LAW STUDENT, AND BEGINNER'S STUDIES. 17 to the bar without the fundamentals of a good edu- cation is sadly handicapped. A knowledge of his- tory, of the languages, of literature, of rhetoric, of logic, indeed, of all the elements of a complete educa- tion, is essential, or, at least, most helpful to his suc- cess. The study of the law should never be entered upon until the student has this foundation estab- lished, and so well laid that upon it he can build his legal education. He needs knowledge, as thus ac- quired, to aid him in the study and the practice of the law, he needs the power of reasoning from cause to effect, of analysis, of collaboration, of mental discipline, and he must know how to acquire and how to use knowledge. § 14. Chitty's educational qnalifications of the at- torney. — Mr. Chitty, in describing the education required of articled clerks previous to and pending their service, so well sets forth what is needful to the lawyer of this day that we do not hesitate to give his remarks in full. He says: "With respect to the preparatory education of a youth intended for any department of the law, especially as an attorney or solicitor, it should be much more extended than has hitherto been customary. Parents would do well not to article their sons before they have finished with care and assiduity, at deast, a good classical school education, and even that alone will scarcely be sufficient to enable a party afterwards to proceed through life with full advantage, much less to obtain great eminence. Even after the completion of a good school education, two or three years of study, under proper direction, of most of the useful sciences 2 18 ELEMENT AEY PRACTICE. § 14 before he is to be articled, would be highly advan- tageous. It should be remembered, that to proceed with facility through any professional pursuit, an attorney should at least be well informed of the dead languages, the Greek and Latin, from which so many scientific terms are derived, not indeed in law, but in other branches of knowledge and literature; for they may have to conduct suits and proceedings connected with every science, and therefore, some previous knowledge of each would be desirable, and especially a full knowledge of physics or natural philosophy. All branches of society have, particu- larly of late, so much advanced in knowledge, that unless a professional gentleman be well acquainted with an outline of most sciences, he will, when he starts in business, find himself too cramped in knowledge to act with safety, or without apparent embarrassment, from fear of exposure or error." "It should be further observed, that besides due knowledge of law and useful sciences, it will be of great importance that the youthful attorney should, as he progresses, study the distinguishing tempera- ments and characters of mankind, to which also the reading of biographical works would greatly con- tribute. He has to contend with the passions, the weaknesses of human nature, and not unfrequently even against the cunning and iniquity of mankind, and consequently an attorney or solicitor who is a mere lawyer will scarcely ever attain eminence.'" In these days, when the avenues of education are open to every one, there is no excuse for the lawyer ' 1 Chitty's General Practice, 13, 15. § 15 LAW STUDENT, AND BEGINNER'S STUDIES. 19 who lacks these fundamental elements. The self- made man may become a successful lawyer, but he wins with much greater difficulty than his educated brother, while he always lacks the ease and flexibility, flowing from a liberal education. § 15. The law student's preliminary examination. — It is now almost universal to require from one who desires to become a student of the law an examina- tion in the elements of a general education. Those members of the bar who have served on committees of examination can recall instances where applicants have failed on questions which every school boy should be able to answer. Such a committee was once much edified to learn from one of a would-be class of law students that the battle of Waterloo was fought in Massachusetts; that Julius Caesar, after he had conquered Britain, became a great pirate; that the avowed object of the crusades was to obtain tin, of which they stood greatly in need; and that the italicized words in the Bible were so printed to indi- cate that they were to be emphasized. Such a young man, if admitted to registration as a student, might, possibly, have acquired sufiicient knowledge of the law, at least of the sound of its words, and an ability to parrot-like repeat the * answers to questions in Blackstone, to have passed his law examinations, but that such a lawyer would be an honor to his pro- fession is more than doubtful. The instance quoted may be an extreme one, but committees have gen- erally found that more applicants for the prelimi- nary examinations are rejected than those who apply for their legal or final examination. 20 ELEMENTABY PRACTICE. § 16 § 16. Law schools and registered students. — Law students in these days are almost entirely those of the law schools, or are registered in the office of prac- ticing lawyers. The benefits of a law school, of which our country has now so many excellent ex- amples, need not here be set forth, beyond the gen- eral statement that a student can best acquire a knowledge of the fundamental principles of the law in a school where he receives more personal attention from its professors and teachers, and where his stud- ies are more systematically directed than in an office, where he must depend so much upon himself, and can have but scant attention from the busy law- yer with whom he is registered. Again, in a law school he has the benefits of class instruction; of the attrition gained by contact with other students; of large libraries; of moot courts, and of the spur of ambition in striving for his degree, and in win- ning the prizes given the assiduous student. In these schools he also has the benefit of special lect- ures in the various departments of the law, many of them by leaders of the bar, and particularly famed in their specialties. His legal education is thus broadened, and, being well directed, brings him to the bar with a more extensive legal knowledge than he could acquire in an ofiice. At the same time he picks up in the office of the active practitioner some details of the practical side of the profession, for which he has not the same facilities in a law school ; still, as has been said, he loses that broad legal education which he so much needs through all his professional life, and which, after all, is of much greater advantage to him than the mere practical side he may have ac. § 17 LAW STUDENT, AND BEGINNER'S STUDIES. 21 quired in the law office. The lawyer is indeed fortunate who, after the acquirement of the liberal education he can find in one of the best Ameri- can colleges, completes his technical course in an excellent law school, and can then obtain a clerkship, for a few months, in the office of a prominent and active practitioner. This supplement to his legal education adds to his accomplishments that of some knowledge of the practical side of the law, which he will find of great benefit when he launches out for himself. § 17. The beginner's legal knowledge. — It has been well said of the limited period the student has for a preparation for the bar that "the most he can hope to do within that time is to get a pretty definite notion of what the law is, and the subjects of which its treats; together with some of its more important truths and principles ; and, in doing this, to learn how to make further progress when he comes to the bar, by applying himself to the discovery of new principles, and learning how to make use of the knowledge he has and may acquire, in the business of solving questions as they arise in his practice. Starting in this way, every step he takes aids him in taking the next higher one in his course ; till, after having acquired enough of their principles and their application to serve the ordinary demands upon a new beginner in practice, he may enter the profes- sion, going as it were to a higher school, to pursue still further the science of which he has but acquired the rudiments." ' In short, he acquires some knowl- 1 Washburn's Lectures on the Study and Practice of the Law, 18. 22 ELEMENTARY PRACTICE. § 18 edge of the fundamental principles of the law, and of their application to a given state of facts as pre- sented to him in his practice. This, with the valu- able faculty of knowing where and how to find the law, must complete the education of the student. It is, therefore, of the first importance that the princi- ples of the law should be mastered before its practice is undertaken. The beginner must remember that when he is called to the bar his education is but commenced, rather than completed, and that during all his life he must continue to be an ardent student in his profession, knowing that he can not master all the law, even if he were vouchsafed the years of a Methuselah. § 18. His legal studies after admission to the bar. — At the commencement of his practice, the beginner is not likely to be so crowded with clients, nor his time so occupied, that he can not have at least some hours of the day to devote to his studies. He is now cast upon his own resources, and the direction of his studies is within his own control. Just what course those studies should take he is often at a loss to know, but it is important that they should be in a proper direction, and that they should be applied along lines of value to him in his professional career. It is the purpose of this and the succeeding sections of this chapter to attempt to give him some hints on this subject, proving, it is hoped, of value. As to his general legal studies, but little need be said. His own good judgment will tell him that it is of very great benefit to read the many valuable text- books which have not been included in the student's curriculum; while those he has already followed. § 19 LAW STUDENT, AND BEGINNER'S STUDIES. 23 especially in the leading lines of his legal education, such as elementary law, pleading, evidence, equity, contracts, etc., should be kept fresh in his mind, their review being time well spent. § 19. Case law. — The cases contained in the re- ports of his own state should demand his early attention, particularly the leading authorities, and especially those which may have varied the rules of the common law, as he has learned them, or which differ from the decisions of the other states. The profession find it of great value to read the reports of their state as they are published, and where they are given in advance sheets they are of still more value. The young lawyer would do well to carefully follow these new decisions, and in doing so he will find that in a comparatively few months he has traveled over a large part of the general field of the law, and will thus be able to put himself well abreast of the trend of the decisions of his state. If he has chosen one of the special lines of the profession it is needless to say that the studies of the novitiate will be directed very largely in that course, nevertheless, there are subjects the beginner should pursue, which are essential, whether he is a general or special practitioner, subjects probably not within the line of his preparatory legal education, but, at the same time, of practical aid to him in his profes- sion. These we will consider in the succeeding sections. § 20. The federal and state constitutions. — While every one worthy the name of a student has, proba- bly, learned something of the constitution of the United States, nevertheless, the lawyer should make 24 ELEMENTARY PRACTICE. § 20 it his study from a legal standpoint, fortifying him- self with a thorough knowledge of its prohibitions, limitations and constructions, in order that he may be prepared to bring his cases within its crucial tests. All this is equally true of his state constitution, which also demands his close and studious attention. It is the fundamental law of his state, and the lawyer should be prepared at all times to test the questions arising in every case by the rules of that constitution. Illustrating this constitutional test is the case of Rogers v. Manufacturers Improvement Co., 109 Pa. St. Rep. 109. Here, recovery was sought by a cor- poration claiming the right to collect tolls upon logs floated down a stream, the charter giving it in plain terms a corporate franchise to levy such charges. The case seemed hopeless for the defendant, and the verdict went against him in the court below. On appeal, the judgment was reversed, it being held that the title of the enactment creating the corpora- tion plaintiff did not clearly express the subject of the act, as was required by the state constitution. Not only was the action thus defeated, but the value of the plaintiff's charter was practically destroyed, and large sums invested by its incorporators lost be- yond recovery. Had the framers of the act borne in mind this plain requirement of the constitution all this could have been avoided, and had not the defendant's counsel been familiar with that require- ment the result would have been a verdict against his client for the plaintiff's claim. The study of the constitution should include its terms and provisions, as well as the cases constru- ing it, or which may have been controlled by its con- § 21 LAW STUDENT, AND BEGINNER'S STUDIES., 25 structions and prohibitions. It is suggested to the beginner, with the utmost earnestness, that a familiar knowledge of the state and federal constitutions should be acquired at the earliest possible moment, and that this knowledge should be of a nature to en- able him to readily refer to them, so that he will be prepared to recite and explain their very words, espe- cially the articles and sections relative to the judici- ary, legislation, private and public rights, and to all of its parts particularly applicable to the lawyer's practice. § 21. Statute law. — Assuming that, while a student, the beginner's legal studies were more confined within the lines of the common law, rather than extended to the statutory law particularly applicable to the state chosen for his field of practice, or to the federal statutes, these subjects are now called to his attention for his early consideration after his admission to the bar. A knowledge of statute law is required for the solution of questions arising under its terms, and, equally, because those statutes have often changed or modified the rules of .the common law, and may have very materially altered the principles he learned to follow while a student. Every state has a digest of its statute law, usually annotated with the decisions of its courts construing those statutes, and the beginner, with the aid of his preparatory studies, should have no difficulty in early familiarizing himself with the written law of his chosen state. Where there is a code, it goes without saying that he must give it his thorough study, and master it so far as it lies within his power. Indeed, wherever he locates, he should make himself familiar 26 ELEMENTARY PRACTICE. § 22 with the statute law of his state before he commences .active practice, and should be prepared at all times to refer to it with readiness and assurance. § 22 . An example of a statutory change of a common rule. — Instancing a change of a common law rule by a statute, the writer has in mind an action brought upon a note signed by the defendant as a surety, where the principal maker had subsequently be- come insolvent. The defense, set up by the plead- ings, was to the effect that the defendant had pointed out to the plaintiff certain property of the prin- cipal from which, it was alleged, the note could have been collected had process then been instituted against him, as the defendant demanded it should be, and, failing in that, it was claimed the surety was discharged. At the trial the plaintiff made prima facie proof by showing the execution of the note, and, offering it in evidence, rested. The defendant showed the solvency of the maker of the note at the time of the notice, and proved the notice, stating that it had been given orally. The defendant then rested, and, no further evidence being offered, his counsel moved for binding instructions for a verdict against the plaintiff, citing numerous authorities to sustain his position, all of which clearly established the common law rule to that effect. The defendant's counsel expressed the utmost confidence in the re- sult, adding that the plaintiff's attorney, through youth and ignorance, had unwisely permitted his client to become liable for the costs of the action, which could only be ruled against him, regretting that he had not given the authorities more attention, etc.; all of which, if it had been true, would have § 23 LAW STUDENT, AND BEGINNER'S STUDIES. 27 been a severe criticism upon the young lawyer's le- gal knowledge. He, however, was enabled to turn the tables upon his adversary, by producing an act of assembly, then but lately enacted, providing that such a notice must be in writing. He was much comforted, as well as relieved from the strictures of his opponent, when he saw the defendant's counsel, a,fter scowling at the statute, quickly gather up his books and papers and retire from the court room, leaving his client to pay both the verdict, and, as well, "ill-advised costs." § 23. Federal statutes. — For similar reasons the beginner must devote some attention to the Revised Statutes of the United States; chiefly on the subjects of courts, their jurisdiction, procedure, criminal pro- visions, etc. He may be called upon, sooner than he may anticipate, to institute or defend a civil ac- tion, or to defend a prisoner, in the federal courts, and should have sufficient familiarity with the stat- utes of the United States to properly bring and try his case in those courts. The earliest knowledge he needs in this direction is as to the jurisdiction of the federal courts, their organization and powers, and the provisions enabling him to remove thereto a cause from the state courts. § 24. Practice in the state courts. — It would seem almost superfluous to say that the practice of the law, as administered in his state, should command the beginner's early attention. Its prime necessity is most apparent. Nearly every state has local text- books upon this subject, and these the lawyer must master or he is like a ship at sea without sails or rud- der. It is not difficult of accomplishment to one 28 ELEMENTARY PRACTICE. § 25 who has obtained a knowledge of the fundamental principles of the law, and will be found to be a very- entertaining subject for study. The beginner will soon learn that his first troubles, and his earliest er- rors, concern questions of practice, — the knowledge of how to do things. It is, like every other branch of the law, a subject in which he never can become perfect, for the obvious reason that the many and various questions of practice he is called upon to solve, will present difiiculties, as to the manner of their solution, where he will often find himself with- out a precedent to guide him. Still, it is a depart- ment of the law in which, by labor and experience, he can become the most proficient, and where, by close investigation and observation, he will be able to follow the true path, and will find, as his practice increases, that he will be enabled to meet its many and varied requirements. § 25. A skillful practitioner is a good lawyer. — Skill in practice is one of the signs of a good lawyer, while the absence of that quality, particularly with his clients, is very likely to lower his professional reputation. "The public will sooner overlook and pardon an error in judgment, or a mistake in a legal conclusion, than excuse a blunder in doing a piece of business. It is difficult at times to form a conclu- sion whether a legal opinion is correct or not, whereas most mistakes in doing business are patent and palpable.'" The importance of an accurate knowledge of practice, and of the manner in which the papers in his case are to be prepared, will be ' Washburn's Lectures on Study and Practice of the Law, 28. § 26 LAW STUDENT, AND BEGINNER'S STUDIES. 29 appreciated by the lawyer when he meets with those of his opponents who seem to prefer to rely upon technical objections, rather than upon the merits of their cases. Such technicalities are usually brought to bear upon some alleged informality in the plead- ings or procedure of the cause. Such men are found at every bar, and, while their tactics are not always governed by strictly ethical rules, or by generosity towards their opponents, they must be met and de- feated on their technical defenses. Here the accurate lawyer will find full need and use for his practical armament, and will feel well repaid for his efforts in obtaining proficiency in that direction. A great boon to the profession is the lately pub- lished Elliott's General Practice. It is an exhaustive treatise of the subjects relating to the preparation and trial of causes, and covers all of that ground most thoroughly. It is of value to the lawyer, wherever he may locate, and is a modern and model text-book. § 26. Federal practice. — An act of congress pro- vides that the practice, pleadings and forms and modes of procedure in the United States circuit and district courts, in civil cases, other than equity and admiralty cases, shall conform, as near as may be, to that existing in like causes in the courts of record in the state where such federal courts are held.' Hence, in law cases a knowledge of the practice of the state courts is generally sufficient; but for equity and admiralty causes, and for the purpose of being familiar with all the details of federal procedure, the ' Eevised Statutes, § 914. 30 ELEMENTARY PRACTICE. § 27 lawyer who expects to have any business in those courts must become conversant with their practice. Among the leading text-books of procedure in the federal courts these may be noted: Foster's Practice in United States Courts, Desty's Federal Procedure, Shiras' Equity Practice in Circuit Courts, Thatcher's Circuit and District Courts, Loveland's Forms of Federal Procedure, Desty on Eemoval of Causes, and Dillon's Removal of Causes. § 27. Learning practice outside of text-books. — There are some ways in which the lawyer can solve questions of practice, when he can find no certain rule laid down in the local work, or where the cir- cumstances of the case may vary the general rule. One of these is to carefully study reported cases in line with the one he has in hand, and there find what were the process and procedure then had. Not al- ways will he be successful in that direction, because the report is more likely to be confined to the ques- tion of law adjudicated than in showing in detail the manner in which it was raised. Still, he will often pick up valuable hints of much assistance, and, frequently, will find just what he wants. If the pro- cedure there had has resulted successfully, and the decision is in accord with that practice, he is justi- fied in taking it as his guide. If the decision does not sufficiently enlighten him, he may find it wise, where the matter is of sufficient importance, to ex- amine the full record of the case, to be found in the court from which the appeal is taken, and, some- times, preserved in printed form. Thus, in some states, public law libraries have full printed records of the cases adjudicated in its courts of last resort, § 28 LAW STUDENT, AND BEGINNER'S STUDIES. 31 m and reference to those volumes may be of value. Another plan is to search among the records of his own courts, where he may find causes proceeding upon grounds similar to his case, and may thus be well guided; remembering to follow only in the foot- steps of those who are regarded as leaders of the bar, and who have the reputation of careful, skilled and accurate practitioners. § 28. The reason for the rule of practice must be mastered. — The true plan is to study the reason for the practice laid down as the general rule, either in the works on practice, in the rulings of the courts, or in the words of the statute, and when he has dis- covered the principle involved the lawyer will be able to solve the questions arising under exceptions to the general rule. In short, the ordinary practice can readily be ascertained, but the exceptions must be conquered by applying logical reasoning to the general rule and ascertaining its very grounds and principles. The lawyer's knowledge of practice gained without a thorough understanding of the reasons for its rules may suffice in a common case, but will not stand him in stead when he meets with questions not within the familiar and well-worn path of the general rule. The solution of intricate questions of practice, when the beginner has exhausted every other avenue for personal research and investigation, may often be had by an application to an older and more experi- enced member of the bar. It is almost the only ex- ception to the general rule that the beginner — and the older lawyer as well — should never depend upon 32 ELEMENTARY PRACTICE. § 29 • others to advise him in his own practice; a subject which is discussed more at length in another place.' § 29. Forms of procedure and conveyanciiig. — Al- though closely allied with practice, indeed but a branch of it, this subject should receive careful at- tention. Forms of procedure, in probably every state, are set forth with more or less particularity in works known as form books, covering the leading subjects, while the others can be obtained, in the ab- sence of such books, by a careful examination of the records and processes of the courts. Forms of pro- cedure include those used in the inception of a cause, in its pleading, in its various stages, and at trial, in- cluding those necessary for the appeal, as well as in the recovery, after final judgment, of the matter in litigation. These forms are, of necessity, very nu- merous, and it is not to be expected that the begin- ner can at once become familiar with them all in their various details. Indeed, throughout his pro- fessional life, he will find forms to be used where he is almost entirely without a precedent to guide him, and where he must largely depend upon his own in- ventive genius. At the outset, the beginner should familiarize himself with the forms pertaining to the more simple actions; such as assumpsit, trespass and replevin. Among his early duties, for example, may be that of bringing an action upon a promissory note; he should know in whose name it is to be brought, the form for and the manner of obtaining the writ, and the procedure necessary to obtain judgment by default, or to frame the issue for trial. While form • Chapter iv, §§ 44, 45. § 30 LAW STUDENT, AND BEGINNER'S STUDIES. 33 books are of advantage to the beginner, as well as to the more experienced practitioner, too much reliance can not be placed upon them, as no cast-iron rule can be made to fit every case. The reason for the form should be mastered, and then it can be more readily adapted to the various changes required by the circumstances of the case. As to forms of conveyancing, the beginner should have but little diflGiculty, as blank deeds, mortgages, bonds, leases and the like, in current use in his state, can be obtained from a law stationer. In addition, in doubtful cases, an examination of form books, or an investigation of the land records, may enable him to find a precedent fully covering his needs in that direction. § 30. Rnles of court. — Rules of court are regula- tions of a definite character, and, in a restricted sense, are minor laws governing the practice ajid procedure of the tribunal by whom they are framed. Hence, it is essential that the lawyer practicing in a court should become familiar with its rules. These should be thoroughly learned and understood by the beginner, as they will be found necessary at the very outset of his practice, and of daily application to his professional business. He should not hesitate to ask the clerk of the court, usually familiar with its rules and customs, or any more experienced practitioner, or even the judges themselves, to inform him, if un- able to ascertain for himself, if a rule of court exists iipon a given question of practice, and, if it does, how it has been construed with reference to matters similar to the one in hand. 3 34 ELEMENTARY PRACTICE. § 31 § 31. Leading cases and legal literature. — Among the early studies of the young lawyer none can be of greater benefit than a careful examination of cases, both to master the principles of law there pronounced and to ascertain how the cases were carried on; in short, to learn the practical side of causes. If he will read the full reports of celebrated trials he will learn how to examine and cross examine witnesses, how to present the points, how to make an argument, and, generally, how to conduct a cause. He must do more than to merely read the case, he must study it thoroughly, and master it in detail. He can read- ily find such cases, and they will be found to be both instructive and entertaining reading. In line with these readings there is a literature of the law which the beginner will find of much benefit, at the same time furnishing him with enter- tainment. The list given is a somewhat mixed one, but includes books worth his while to secure. Such are Campbell's Lives of the Chief Justices of England, and Lives of the Lord Chancellors ; Foos' Memo- ries of Westminster Hall ; Hortensius, the Advocate ; Morse's Famous Trials ; Harris' Before and At Trial ; and, in the lighter vein, Warren's Ten Thousand a Year; Harris' Farmer Bumpkin's Law Suit; Brown's Humorous Phases of the Law ; The Lawyer's Code of Ethics (a satire), and Baldwin's Flush Times in Ala- bama and Mississippi. § 32. Khetoric, logic and forensic oratory. — ^Tak- ing it for granted that the study of rhetoric and logic have formed part of the lawyer's education, it can not be amiss to remind him of the value of a continuation of his studies in those directions. That § 33 LAW STUDENT, AND BEGINNER'S STUDIES. 35 a thorough knowledge of these branches of a general education is of value to the lawyer is most evident. In forensic oratory he can never become too profi- cient. The gift of speaking well and forcibly is one of the strong elements of the successful advocate. While it is often one of Nature's gifts, it can also be acquired by those who are not "to the manner born." As a text-book in forensic oratory, Professor Robin- son's most valuable work, in that title, can not be too highly recommended to the lawyer. It is worth his careful study, and will be found to be of the greatest benefit in the trial and presentation of his causes. § 33. Professor Washburn's remarks on rhetoric and oratory. — Professor "Washburn, of the Harvard Law School, has well described the value of these studies to the lawyer. He says: "There are few powers in a young man more susceptible of being educated by care and perseverance, provided he has a reasonable store of learning and good sense, with that of thinking and expressing his thoughts in a clear, orderly and convincing form; so that, while the fluent man may have to be checked, the timid and self-distrustful one should be cheered and en- couraged to make the effort to overcome his hesitancy of speech, or confused thought. * * * Jq tjig gj-g^ place, I would have a student get a clear conception, in his own mind, as to what he should aim at in this matter of addressing others. Let him under- stand that the power of making a speech is not an end, but a means. As a lawyer he is not to get his living by amusing and entertaining others with the 36 ELEMENTARY PEACTICE. § 33 flowers of rhetoric and the graces of elocution, but by convincing their judgments and persuading them as to what they are to do. * * * If I were to ad- vise a young man how he could most likely succeed in becoming an effective public speaker, or advocate in court, I should first advise him to train and edu- cate the various faculties and functions of his mind, with a view of gaining knowledge. I would then insist upon his patiently and persistently endeavor- ing to lay up a stock of this commodity, and gather ideas from what he reads and hears and sees. Let him, in the meantime, accustom himself to some of the best models of English style, with a reference to plain, simple and expressive language, and clear and comprehensive forms of expression. Let him bear in mind that, as a lawyer, he will have two parts to act and two lives to live; and that he must, consequently, have two styles to cultivate and use, — one for the court-room, the other for the world out- side of it. If in doing this he watches the opera- tions of his own mind, he will find that so far as the use of language is concerned, the same rules of ac- quiring and applying it appertain to both these rela- tions in which he stands to the rest of the world. He has not only constant occasion to say something, but, to make himself understood, he must say it clearly and distinctly; and if he does not understand a thing himself, he can not make it intelligible to others. In other words, to address an argument to a court or jury, he must go through the same pro- cesses by which he would seek to convince his neighbor or stimulate to action a popular assembly." "As to how he shall get a ready command of apt § 34 LAW STUDENT, AND BEGINNER'S STUDIES. 37 and intelligible language in which to clothe his ideas or argument, much may be done by cultivating good habits of style, by familiarizing himself with the works of the best English authors ; not with a view of copying them, but of imbibing their tone and spirit, and, at the same time, becoming acquainted with the language and forms of expression which they make use of. Let him, in this connection, accustom him- self to putting down his own thoughts in his own language upon such subjects as interest him, in the form of a composition or essay, and he would often be surprised at the greater ease with which he ex- presses what he thinks, and 'the wider range through which his thoughts expand themselves." ' § 34. Moot courts, mock cases and quiz clnbs. — Following a similar custom prevailing in the law schools, the young lawyer will find much assistance, and acquire no little practice, by taking part in moot courts, organized among the juniors of the bar. Here, opportunity wil] be given him to prepare and argue questions of law, thus giving him practical experi- ence of value in his professional business, and ma- terially assisting him in developing his abilities as a lawyer. The opportunities for debate thus given him are, alone, very advantageous, and when the beginner can take part in a moot case he gains some personal experience in preparing a brief and arguing questions of law, proving of practical value in his real practice. He will, also, be likely to overcome some of the awkwardness and embarrassment he will probably suffer when called to try his first case in • ■Washburn's Lectures on the Study and Practice of the Law, 79-81. 38 ELEMENTARY PRACTICE. § 35 court. Such an association could add the Benefits of mock trials, where witnesses are examined; and quiz clubs, for examination in the legal studies of their members, as, also, the preparation of opinions on stated questions of law. Of the great Lord Mansfield, his biographer says: "He never had the advantages of being initiated in the mysteries of legal warfare by any practitioner. He attended a debating society, where knotty ques- tions of law were discussed; and such pains did he take in getting up his arguments, that the notes he then made were frequently of use to him when he was at the bar, and even after he had been elevated to the bench.'" Fulbeck, as early as 1599, said: " Students of the law ought, by domestical moots, to exercise and conform themselves to greater and weightier attempts, for it is a point of warlike pol- icy, as appeareth by Vegetius, to train young soldiers by slight and small skirmishes for more valorous and haughty proceedings." §35. Book-keeping, acconnts, and business and banking methods. — The beginner's attention should be directed, in the course of his studies in preparing for the active practice of the law, to the practical forms of business, such as book-keeping and accounts. A thorough knowledge of these things is of much benefit to the lawyer. Such a large portion of prac- tice has to do with commercial affairs that to under- stand them, in their various details, is to put him in a position to comprehend, without difiiculty, many of the questions he meets with in his daily professional ' Lord Campbell's Lives of the Chief Justices, Vol. iii, p. 221. § 36 LAW STUDENT, AND BEGINNER'S STUDIES. 39 business. Again, this knowledge is of benefit in preparing contracts, in the settlement of partnership affairs, and of the estates of decedents and of insol- vents. So, also, should the lawyer's knowledge of business affairs include methods of banking and the practical questions arising as to forms of negotiable paper. In short, a good business man, with the ad- dition of a sound legal education, should make a skillful and successful lawyer. § 36. Business men make the best clients. — It is not to be forgotten that the clients from whom the lawyer must expect the largest amount of profes- sional business are those of the commercial class. His familiarity with the forms and details of every- day business life must, of necessity, give him a standing and prestige in their eyes, and form one of the reasons for his employment in their legal affairs. It is the business men of the community who form the bone and sinew of its progress and enterprise; by them are new industries started, organizations and com- binations formed, corporations created, and their affairs managed and controlled. The lawyer can count himself as fortunate if he secures their confi- dence and is intrusted with the charge of their legal affairs. If of two lawyers, both of equal legal learning and character, one is to be chosen as the legal adviser of the business men of the commun- ity, it can not be doubted that it will be the one most familiar with commercial affairs. In this con- nection it may be suggested that some knowledge of the manufactures of his community is valuable to the lawyer. In these days, every town of any size usually has one or more industries for which it is 40 ELEMENTARY PRACTICE. § 36 famed. Therefore, it is wise for the lawyer to obtain some acquaintance with the details of those classes of business, for he is likely to be called upon to treat questions arising in such departments of trade, and should be in a position, not only to understand him- self, but to be able to explain to others the various processes used in > producing such articles of manu- facture. CHAPTER III. CHOOSING A LOCATION. § 37. The importance of this choice. 38. His course when the choice has been made. 39. City or country? 40. A specialty in the profession better followed in a large city. 41. The choice of a smaller city. § 37. The importance of this choice. — Presuppos- ing that the newly admitted member of the bar, or the recent graduate of a law school, is casting around to decide where to locate, these suggestions are offered as, possibly, of some interest at this time. This choice is a matter of the greatest importance to the young lawyer, its solution to be sought with much care, and determined only after mature deliberation. Before making the selection he is to remember that the place he chooses should be adopted as his permanent home. In the profession of the law, more than in any other, it can be truly said, "a rolling stone gath- ers no. moss." Once established, the lawyer should pursue his professional career without change. He becomes identified with the community in which he lives, and the associations and connections there made may not permit him to obtain an equally good footing in any other locality. It is to be remembered that a clientage is obtained by, and very much de- (41) 42 ELEMENTAKY PRACTICE. § 38 pends upon, the confidence the community has in the lawyer's character, ability and adaptation for legal business. This confidence is, of necessity, slowly won, but when secured can, by the exercise of the same qualities which built up his clientage, be re- tained throughout his professional life. A lawyer's clientage is very largely a personal following, and as men rarely change their solicitors, when found to be satisfactory, it is but tempting fortune to seek another location when once the lawyer has secured a fair be- ginning. § 38. His course when the choice has heen made. — When he has made his selection the young lawyer should make these rules the guide of his conduct. Show to the citizens of your town that you have come to stay ; take part in affairs of public interest ; put yourself abreast of the vital local questions; make friends surely and, if you can, rapidly ; if you have money invest it at home, indicating to your fellow- citizens that you are interested in the growth of your town, and that you are not one of those who have all to gain and nothing to lose ; establish a reputa- tion for energy, integrity and promptness ; learn all you can, do all you can, and both as well as you can. If to these qualities you add patience and persever- ance you will soon begin to accumulate a clientage, while, in time, you will be regarded as one of the leading lawyers of the community, and will find that you have earned a reputation which you well de- serve, and one which can be preserved throughout your whole career. § 39. City or country. — ^The beginner's first ques- tion may be: Shall I locate in the city, or in the § 39 CHOOSING A LOCATION. 43 country? By these words are meant the great met- ropolitan centers, as distinguished from the smaller cities and larger towns of the country. It could hardly be worth his while to give any consideration to rural communities, for the volume of business there found could never be suflScient to satisfy the ambitious lawyer. If his financial affairs will per- mit him to establish himself in one of the great cit- ies of the country, such should be his choice. But he must remember that there he will be compelled to longer depend upon his private resources before he can reap the rewards of his profession. In a large city he will, necessadly, be a longer time in acquir- ing a clientage, but, when once secured, he is as- sured of a wider field and of more opportunities for professional advancement. It will require a longer period, and greater patience, to successfully launch his craft among the many competitors he will find in a great city, but when once the breezes fill his sails he can rest assured of more certainly reaching the port of every lawyer's ambition, — professional fame and its golden rewards. In a great metropolis there is no end to the op- portunities of the lawyer, and when he begins to be famous the only limit to his clientage is that of time to give it attention. There he will have much with which to contend, more temptations to avoid and disappointments to overcome ; yet if he avoid these rocks, and outride these storms, he is sure, with pluck, energy and integrity as his mates, to secure in the end the greater prize, and to sometime find his ship sailing the ocean with his slow com- petitors in the dim distance of the rear. 44 ELEMENTAEY PRACTICE. § 40 § 40. A specialty in the profession better followed in a large city. — Again, if he choose one branch of his profession, in preference to the entire field of the law — as he is more likely to do in a very pop- ulous community — he will find greater opportunities to excel in his specialty than he could hope for in places where that class of legal employment is more rarely required. It is doubtful if it be so delightful to confine one's attention to a particular line in the profession as it is to have to do with the variety of the law in its practical application to the multitudi- nous affairs of men, and in all their varied relations in life ; still, it can not be denied that the lawyer, like his medical brother, acquires greater fame and fortune by following one branch of the profession, than in working in its entire field. A learned jurist once said : ' ' God forbid that one man should know all the law," but it could not be a transgression to master one of its departments. We can not be great in all things; we may be in one. § 41. The choice of a smaller city. — To those, however, whose condition in life requires a more immediate return than can be expected in localities where the bar is overcrowded, or whose tastes lead them to prefer a home in a smaller community, it is suggested that a location should be sought in a grow- ing, active and progressive center. There are in this country many places, yet in their infancy, or in vigorous youth, where the opportunities for profes- sional success are very great. It is to such a com- munity that the lawyer, not able, or willing, to locate in a great city is directed. Avoid those places where progress is a thing of the past, and the busy § 41 CHOOSING A LOCATION. 45 hum of industry has left, never to return, or, per- haps, has never been heard, but seek, rather, a com- mercial center, where progress and activity rule, and where dwell men who have at heart the material in- terests of their town, and do all in their power to advance her welfare and progress. Such a commu- nity will have trade, exchange, manufactures and business, from which the active, energetic and trust- worthy lawyer can expect to obtain professional em- ployment. That there is already a crowded bar need not deter him. If he have the qualities and charac- teristics of a good lawyer, and adds to them those of energy, industry and perseverance, he will reach, in time, that position at the bar which Daniel "Webster said was never crowded, — ^the top of the ladder. CHAPTER IV. LAW PARTNERSHIPS. § 42. Advantages of association with an established practitioner. 43. Some disadvantages in such an association. 44. Danger of losing confidence in himself. 45. Value of self-reliance. 46. Partnerships between lawyers of equal experience. 47. The growth of law partnerships. § 42. Advantages of association irith an estab- lished practitioner. — It would seem superfluous to say that the beginner at the bar is indeed fortunate if he has an opportunity for association with one already established in the profession. He is assured an income by at once entering upon an earning career ; while alone he might be obliged to wait some time before receiving anything more than nominal earnings. He would immediately be given some- thing to do, and, being placed in a position where his services are forthwith required, would have the satisfaction of becoming a practicing lawyer from the start. If such an arrangement could be effected with one who would take the young lawyer as a part- ner and associate in his practice, and is a man worthy his confidence and respect, with tastes and temperament not incompatible with his own, it would, probably, be the means of advancing him more rapidly in his profession than would otherwise (46) § 43 LAW PARTNEKSHIPS. 47 be possible. The beginner would thus have given him an opportunity without which many a young lawyer has long been obliged to await a clientage. To those whose necessities demand some immediate financial return, a partnership with an older prac- titioner is an advantage which it would be unwise to reject. § 43. Some disadvantages in such an association. — The beginner must remember that he runs some chances, and is under some disadvantages, in form- ing a connection with an older lawyer. He is but a fledgeling at the law, and to be placed at once, and without experience, in the midst of the battle, gives him responsibilities which can not be assumed by every one, or, if undertaken, may result in serious misfortune and loss of reputation. The profession of law is not one into which the beginner can jump without some experience. There may be those who are so highly favored by nature as to be fully equipped from the time of their admission to the bar, but to most mortals, the practice of the law, as well as its principles and the proper application of its rules, can not be mastered so quickly or readily. As we have already said, the lawyer who acquires his prac- tice step by step, leading slowly, but none the less surely, from the lesser to the greater walks of the profession, will, in the end, secure the greater prom- inence, and be better fitted to reap its rewards. Nat- urally the junior must expect to occupy a very subor- dinate position to his senior partner, and may find himself not much more than a clerk, without oppor- tunity of sharing, even in a slight degree, in that portion of the practice requiring the employment of 48 ELEMENTARY PRACTICE. § 44 talent and skill; thus being unable to assert his own individuality, or to exercise his own mind in the so- lution of the intricacies of the law. § 44. Banger of losing confidence in himself. — The most serious risk the young lawyer takes in his association with an established practitioner is the danger of losing his self-reliance — one of the prin- cipal elements of professional success — by learning to depend too much upon the advice and assistance of his experienced associate, rather than trusting to his own efforts and good judgment. Insensibly, such a partnership is likely to result in the junior's sub- mitting everything to the decision of his senior. He advises his client, not from his investigation of the law, and from his own judgment, but, simply, as re- peating the opinion of his partner; he tries his cases, even trivial ones, only at the elder's elbow; he draws all his papers with that assistance, and, generally, becomes not very much more than the echo of his associate. All this goes well enough so long as he has this help, but some day it is taken from him, and then he is forlorn indeed. He is without indi- viduality, he lacks self-confidence, and finds himself worse off than one of his fellows who, unaided and alone, has mounted the ladder and now stands high in his profession; confident, self-reliant and with a clientage earned for himself, not inherited. It is this risk which should be remembered when the youthful lawyer is considering the advantages of such a part- nership. The beginner who avoids the dangers to which we have just referred, and has a partnership with an older and a good lawyer, has every oppor- § 45 LAW PAETNERSHIPS. 49 tunity, with the aid of, his own well-directed talents, to earn a valuable clientage. § 45. Value of self-reliance. — It is this quality of self-reliance that is of inestimable value to the law- yer ; without it he can never prosper in his profes- sion; with it he has mastered one of the potent fac- tors of success. Every lawyer knows members of the bar who never take a step in any direction, import- ant or otherwise, without seeking the advice of their brethren ; such a man is not and never will become a successful lawyer. A habit of that sort grows apace, . and in the end is destructive of personal ability. The beginner need not be discouraged from asking the advice of his older brethren — counsel he will always find most cheerfully and willingly given — but he should not do this until he has exhausted every avenue open to him for personal investigation and research. He had much better find what the law is from the reported decisions and text-books than from those members of the bar whom he re- spects as his seniors, who will often feel that he de- pends too much upon them, and thereby will not advanceintheir esteem, while, if he is one who relies upon himself, although occasionally he may err in judgment, he has won the valuable reputation of self-confidence and industry. The writer well re- members, in the early days of his practice, the well- meant, though somewhat brusque, answer he re- ceived from a famous lawyer to whom he had applied for information as to what was the law upon a given question. "Young man," said he, "go to your books and, if you like, use mine, and when you have 4 50 ELEMENTARY PRACTICE. § 46 gone over every index and through all the digests, and then can not find the law come to me and I will tell you ; I know what you wish to know and would gladly tell you, but I do you a greater favor in making you find it for yourself. In this way you will learn something you will never forget, and, still better, you will learn to search the law for yourself. Now, you may think me unkind, but in the future you will say that I have done you a greater favor in refusing your request." That man has long been in his grave, but I feel for his memory the deepest gratitude. Would that every young lawyer could have the same lesson I then learned. § 46. Partnerships between lawyers of eqnal ex- perience. — Returning to the subject of partnerships, from which we have somewhat strayed, the attention of the beginner is called to the value of an associa- tion with another of his own age and experience. The writer freely asserts that two young men who start together in the law as partners, each with the characteristics to which reference has been made in an earlier chapter, and, added to those, consideration and generosity toward one another, have many ad- vantages over those who begin alone. Their com- bined funds will purchase a larger library and afford a better office ; the volume of business will seem greater than if in two parts, and thereby more rapidly draw further employment; together they can prepare and try a cause, and perform legal services with bet- ter results than if alone; and last, but by no means least, can so arrange their time that during business hours their offices are rarely closed, — a valuable as- sistance in gaining and holding clients. Speaking § 47 LAW PARTNERSHIPS. 5^ as one who formed a partnership with a young lawyer with whom he was admitted to the bar, an association which has since continued most harmoni- ously and pleasantly, the writer confidently refers such an arrangement to the careful consideration of the beginner in the profession. § 47. The growth of law-partnerships. — The growth of partnerships in the practice of the law during late years, particularly in the greater cities, is worthy of note. That it is mutually advantageous is evident from their large number. Some of the law firms of the chief cities of the country include several mem- bers, to each one being assigned that portion of the law for which he is specially fitted; thus enabling an oflBce of that sort to take charge of every branch of the practice, and to secure a clientage much more valuable than could be the total of the individual efforts of its members. An ideal law firm would be one so organized and equipped that every case, or class of professional business, could be assigned and properly cared for by one of its number, and that at all times, and under all circumstances, every client, great or small, could secure the best of atten- tion and be so well cared for that he would suffer no delay, nor be disappointed in the results, so far as they were secured by the efforts of his attorneys. That there are such law offices in this country is well known, and when their system is understood, and their methods known, it is not difficult to understated why they are so prosperous and enjoy such large clientages. CHAPTER V. LEGAL ETHICS. § 48. The imperative necessity for the lawyer's obedience to ethics. 49. Sharswood's Legal Ethics. 50. The prohibitions of the Noblesse de la Robe. 51. Those to whom the lawyer owes duties. 52. The lawyer's duty to the court. 53. Improperly influencing the court or jury. 54. To use no falsehood or deceit. 55. The lawyer's duty to his professional brethren. 56. The lawyer's success is promoted by the respect of the profession. 57. Friendships at the bar conducive to professional employment. 58. The lawyer's duty to his client. 59. The lawyer is the keeper of his client's conscience. 60. Choo^sing and refusing causes — ^The ethics of defending the guilty. 61. The lawyer is not required to prosecute an unjust cause. 62. Professional compensation — The honorarium. 63. The right of the lawyer to compensation. 64. Retainers and contingent fees. 65. Ethical rules governing contingent fees. 66. Compensation should be commensurate with the services rendered. § 48. The imperatiye necessity for the lawyer's obedience to ethics. — The scope of this work will not permit of more than a passing glance at the impor- tant subject of legal ethics; a subject which demands the thorough study of every lawyer, and requires its rules to be thoroughly learned and forever followed. (52) § 49 LEGAL ETHICS. 53 No man can become a great lawyer, or maintain his rank in the profession, whose professional life is not always, and without exception, governed by a strict observance of the ethics of the law. It lies at the very foundation of his foothold at the bar; it envi- rons him at every stage of his professional success; and, when his course is run, it remains the chief cor- ner-stone of the edifice of his fame. No lawyer ever followed its precepts more closely, and no judge was ever more governed by its laws, than that emi- nent jurist, the late Chief Justice Sharswood. His lectures on legal ethics deserve a place of honor in the library of every lawyer, and we do not hesitate to incorporate something of what he has there said. §49. Sharswood's Leg3,l Ethics.^ — "Let it be re- membered and treasured in the heart of every stu- dent, that no man can ever be a truly great lawyer, who is not, in every sense of the word, a good man. A lawyer, without the most sterling integrity, may shine for a while with meteoric splendor ; but his light will soon go out in blackness of darkness. It is not in every man's power to rise to eminence by distinguished abilities. It is in every man's power, with few exceptions, to attain respectability, compe- tence and usefulness. The temptations which beset a young man in the outset of his professional life, especially if he is in absolute dependence upon busi- ness for his subsistence, are very great. The strictest . principles of integrity and honor are his only safety. Let him begin by swerving from truth or fairness, in small particulars, he will find his character gone — 1 Page 168. 54 ELEMENTARY PRACTICE. § 49 whispered away, before he knows it. Such an one may not indeed be irrecoverably lost ; but it will be years before he will be able to regain a firm foothold. There is no profession in which moral character is so soon fixed as in that of the law ; there is none in which it is subjected to severer scrutiny by the pub- lic. It is well that it is so. The things we hold dearest on earth, — our fortunes, reputations, domestic peace, the future of those dearest to us, nay, our lib- erty and life itself, we confide to the integrity of our legal counselors and advocates. Their character must be not only without a stain, but without suspi- cion. From the very commencement of the lawyer's career, let him cultivate, above all things, truth, sim- plicity and candor ; they are the cardinal virtues of a lawyer. Let him always seek to have a clear un- derstanding of his object ; be sure it is honest and right, and then march directly to it. The covert, in- direct, and insidious way of doing anything, is al- ways the wrong way. It gradually hardens the moral faculties, renders obtuse the perception of right and wrong in human actions, weighs everything in the balances of worldly policy, and ends most generally in the practical adoption of the vile maxim, ' that the end sanctifies the means.' * * * "There is no class of men among whom moral de- linquency is more marked and disgraceful than among lawyers. Among merchants, so many honest men be- come involved through misfortune, that the rogue may hope to take shelter in the crowd, and be screened from observation. Not so the lawyer. If he continues to seek business, he must find his employment in lower and still lower grades ; and will soon come to § 50 LEGAL ETHICS. 55 verify and illustrate the remark of Lord Bolingbroke, that 'the profession of the law, in its nature the noblest and most beneficial to mankind, is in its abuse and abasement the most sordid and pernicious.' ' ' While such are the depths to which a lawyer may sink, look, on the other hand, at the noble eminence of honor, usefulness and virtue to which he may rise. Where is the profession which, in this world, holds out brighter rewards ? Genius, indeed, will leave its mark in whatever sphere it may move. But learning, industry and integrity stand nowhere on safer or higher ground than in the walks of the law. In all free countries it is the avenue not only to wealth, but to political influence and distinction." § 50. The prohibitions of the KoWesse de la Eobe.^ — A compendium of professional ethics is given in the prohibitions of the "Noblesse de la Robe," an order of men in France in early times, whose only patent of nobility was admission on the roll of advo- cates, and from whose ranks were chosen the magis- trates who, as members of the parliament of Paris, represented the feudal court and council of the ancient kings of France. Among many others of those prohibitions, and to which each one was bound, were the following: "1. He was not to undertake just and unjust causes alike without distinction, nor maintain such as he undertook with trickery, fallacies, and mis- quotations of authorities. "2. He was not in his pleadings to indulge in abuse of the opposite party or his counsel. » Hortensius, The Advocate— Forsyth, p. 215. 56 ELEMENTARY PEACTICE. § 51 "3. He was not to compromise the interests of his clients, by absence from court when the cause in which he was retained was called on. "4. He was not to violate the respect due the court, by either improper expressions or unbecoming ges- tures. "5. He was not to exhibit a sordid avidity of gain, by putting too high a price upon his services. "6. He was not to make any bargain with his client for a share in the fruits of the judgment he might recover. "7. He was not to lead a dissipated life, or one contrary to the modesty and gravity of his calling. " 8. He was not, under pain of being disbarred, to refuse his services to the indigent and oppressed." § 51. Those to whom the lawyer owes duties. — Without discussing the duties a lawyer owes to society at large, and to his fellowmen, as does every cit- izen, we confine our attention to those due from him in his professional capacity. There are three classes to whom the lawyer is professionally bound in legal ethics : to the court, to his brethren of the bar, and to his client. These duties, treated in a somewhat general and, perhaps, cursory manner, with a few suggestions touching the lawyer's choice and refusal of causes, and his professional compensation, form the subjects of the remaining sections of this chapter. § 52. The lawyer's duty to the court. — The attor- ney is an officer of the court, and as such owes to it at all times, and under all circumstances, outward respect in word and action. However much he may be aggrieved by a supposed wrong done him or his client by the rulings of the court, his oath of office. § 53 LEGAL ETHICS. 57 as well as his honor and professional standing, com- mand him to show to the court the utmost respect. On occasion, fully warranted, he may present decided objections to the views expressed, or to the course taken by the court, but it must be done with every sign of outward respect. The lawyer should bear in mind that the dignified and honorable administra- tion of the law demands the respect of the public, and that the bar should never do ought to diminish that public regard. The proper administration of justice is the chief defense of good government from the assaults of anarchy and of evil-minded men, and when its citizens have lost their respect for the judiciary the barriers are beginning to fall, and there is at once a serious public danger. None are more interested in the preservation of the dignity of the courts, and of the law, than the members of the legal profession, and last of all should their actions detract from that dignity, or take away any of the estimation due to the administrators of justice. § 53. Improperly influencing the court or jury. — The ethics of the profession imperatively forbid the lawyer from making any attempt to secretly influence the court. There may be those who seek private in- terviews to make ex parte statements of their causes, but they do so in violation of their oaths of office, and of every rule of honor. Nor would the lawyer of high moral tone ever permit his client to do any- thing, directly or indirectly, which would tend to improperly influence the court; otherwise, he be- comes a particeps crimmis, and must suffer in con- science and honor, if not at the bar of justice. All this applies, and with still greater force, to any at- 58 ELEMENTAEY PRACTICE. § 54 tempt to influence a juror outside the open trial. It goes without saying that a violation of this rule is a crime in law, as well as in the court of morals. "It would be an injury to the administration of prac- tice not to declare that it is gross misbehavior for any person to speak with a juror, or for a juror to permit any person to speak with him, respecting the cause he is trying.'" "This principle is native to the conscience, and will be apparent to all who con- sult the monitor in their own heart. The wrong is aggravated when the taint of personal interest min- gles with it, as when committed by a party to the cause; but appears in the worst form when it is the act of attorneys or counsel, who are the sworn offi- cers of the court, and whose duty it is to act as guardians of the fountains of justice, and who are false to their charge when they defile or taint those waters which they are pledged to keep pure and un- polluted. Such conduct in counsel is a gross breach of trust, for which a removal from the trust is but an inadequate punishment."^ § 54. To use no falsehood or deceit. — ^The lawyer must never practice any deceit or imposition upon the court, nor should he in any form evade the truth. He who is guilty of this offense is not worthy to wear the robe of the profession. His biographer said : ' ' Sir Matthew Hale abhorred those too common faults of misreciting witnesses, quoting precedents or books falsely, or asserting anything confidently 'Blaine v. Chambers, 1 S. & E. 169. ^ Ex parte Carver, 1 Phila. E. 607. § 55 LEGAL ETHICS. 59 "by which ignorant jurors and weak judges are too often wrought upon."^ In some cases, in the heat of an argument, coun- sel may find it difficult to refrain from so coloring the evidence as to influence the minds of the jury. All fair arguments and inferences are perfectly legitimate, but when they extend to a misstatement of the evi- dence, and to a perversion of the truth, the advocate is guilty of a gross breach of professional ethics. It may be doubted, too, if such a course is generally productive of any successful results. If the jury de- tect the lawyer in a statement which they know to be false — and their memory of the proven facts is usually accurate — he at once falls in their esteem, and is likely to have weakened the effect of all his argument if the jury have cause to believe that he is not en- tirely trustworthy. So with the court; if counsel will- fully misquote an authority, or interpolate words, or omit others, and the court discovers the deception, as it most likely will,' the lawyer not only then fails to make his point, but must expect to be thereafter regarded with suspicion. § 55. Tlie lawyer's duty to Ms professional breth- ren. — The lawyer should preserve honorable relations with his brethren of the bar. If, in his daily inter- course with them, he wins their confidence and regard he has taken a long stride toward success in his pro- fession. To secure this respect his promises and en- gagements should be faithfully and punctually kept. At all times his word should be undoubted ; if he be even suspected of unfaithfulness he has begun to lose 1 Life of Lord Matthew Hale, Burnett, 72. 60 ELEMENTARY PRACTICE. § 56 the esteem of his brethren. The attorney will find, in the long run, that the good opinion of the bar is of more value than what is commonly called public applause. The judgment of the bar as to the quali- ties of its members is given with deliberation, but, when delivered, is of great influence with the com- munity. This judgment is based upon the ability and integrity of the lawyer, and when there is added to those qualities courtesy and a gentlemanly bearing, and all are crowned by evidence of his high honor, the verdict will be one known of all men, and pro- ductive of high professional fame. § 56. The lawyer's success is promoted by the re- spect of the profession. — The respect of the lawyer's fellow-practitioners is not only gained by his observ- ance of ethical rules, but his success is often assured by their regard, and his practice is made much easier by their friendship. On this subject Chief Justice Sharswood said: "A very great part of a man's comfort, as well as of his success at the bar, depends upon his relations with his professional brethren. With them he is in daily necessary intercourse, and he must have their respect and confidence if he wishes to sail along in smooth waters. He can not be too particular in keeping faithfully and liberally every promise or engagement he may make with them. One whose perfect truthfulness is even sus- pected by his brethren at the bar has always an un- easy time of it. He will be constantly mortified by observing precautions taken with him which are not used with others. It is not only morally wrong but dangerous to mislead an opponent, or put him on a wrong scent in regard to the case. It would be going ^ 57 LEGAL ETHICS. 61 too far to say that it is ever advisable to expose the weakness of a client's cause to an adversary, who may be unscrupulous in taking advantage of it ; but it may be safely said, that he who sits down deliber- ately to plot a surprise upon his opponent, and which he knows can succeed only by its being a surprise, deserves to fall, and, in all probability will fall, into the trap which his own hands have laid. If he should succeed, he will have gained with his success, not the admiration and esteem, but the distrust and dislike of one of his associates as long as he lives. He should never, unnecessarily, have a personal difl&- culty with a professional brother. He should neither give nor provoke insult. ' ' There is one more caution to be given under this head. Let him shun most carefully the reputation of a sharp practitioner. Let him be liberal to the slips and oversights of his opponent wherever he can do so, and in plain cases not shelter himself behind the instructions of his client. The client has no right to require him to be illiberal, — and he should throw up his brief sooner than do what revolts against his own sense of what is demanded by honor and propriety." ' § 57. Friendships at the bar conducive to profes- sional employment. — If the beginner has the confi- dence and esteem of his fellow-lawyers he may expect to be asked to assist his seniors ; while their regard, continued through life, will bring to his ofiice no mean business from his juniors, when he has acquired a position among the leaders of the bar. ' Sharswood's Legal Ethics, 73. 62 ELEMENTARY PRACTICE. § 5$ Again, it is to be remembered that the judges are practically selected by the bar, and the esteem of his associates may, in time, cause the honorable and able lawyer to be considered by them as worthy of wearing the ermine. The choice of the bar usually meets with the approval of the ballots of their fellow- citizens, while the opposition of their associates gen- erally results in the defeat of those who do not possess their entire respect. § 58. The lawyer's duty to Ms client. — To his client is due the lawyer's devoted fidelity. He who is honorably for his client, first, last and all the time, is sure to be the man who will be sought out for pro- fessional assistance, rather than the one who is not looked upon as absolutely trustworthy at all times, and under all circumstances. The slightest suspicion thrown upon the lawyer's absolute fidelity to his client will prove of incalculable harm to his profes- sional career. He must faithfully preserve his client's secrets ; an attorney will in no case be per- mitted to divulge any matter which has been com- mitted to him in professional confidence ; this is not his privilege, but the privilege of his client, and none other can waive it. He can not be too scrupu- lously honest in the care or management of his client's money or property; if the least shadow of doubt in this regard falls upon him he will suffer irreparable injury. He should treat his client's money as a sacred trust, and, if possible, never mingle it with his own funds. It is a golden motto "Never to let the sun go down on your client's money;" if possible, remit it to him as soon as § 69 LEGAL ETHICS. 63 received. Promptness in this regard will earn the beginner a reputation of great value. § 59. The lawyer is the keeper of his client's con- science. — To some degree the lawyer is the custodian of his client's conscience, and should never permit him to do or say anything which is wrong per se. This particularly applies to the preparation of his client's affidavits, wherein the lawyer should be scrupulously punctilious. The temptation is some- times strong to draw an affidavit stretching the truth, or, at least, the conscience of his client. To such a temptation he must never yield, but, rather, should seek to restrain his client from making oath to that which is not true in every particular. He who secures another to take a false oath is guilty of subornation of perjury, and the counsel who pre- pares an untruthful affidavit, knowing or having reason to suspect its falsity, treads the borderland of the crime, and certainly renders himself guilty in the forum of conscience. To sum up the fidelity due from the lawyer to his client, it can be said that he owes him his entire de- votion to his legal interests, exercised in an honor- able and conscientious manner ; warm zeal in the maintenance and defense of his rights, and the ex- ertion of his utmost learning and ability. These are the aims which alone should satisfy the upright and fathful advocate or counsel. § 60. Choosing and refusing causes — The ethics of defending the guilty. — At one time there was a much mooted question of the ethical right of a lawyer to defend one he either knew or believed to be guilty, and upon that question, pro and con, many pages 64 ELEMENTARY PRACTICE. § 61 have been written.' The successful argument, how- ever, was with Erskine and Lord Brougham, who showed that liberty was indeed gone if the lawyers were so become the judges that they must refuse to defend a criminal, having themselves prejudged his cause. No man is guilty until so proven in a court of justice, after a fair and impartial trial, and it is the right of the prisoner to have that impartial trial ; which can only be had when he is defended by counsel. Without that legal presentation of his defense a criminal case would become a mockery, and the prisoner's conviction a gross injustice. In this connection it is to be remarked that the court has power to appoint counsel to defend a prisoner, and for such an appointment, as an officer of the court, he can not refuse his services. § 61. The lawyer is not required to prosecute an unjust cause. — So much for defending an accused, and, perhaps, guilty prisoner. Quite a different question is raised when it comes to a prosecution. Here, the lawyer is neither legally nor morally re- quired to take part, as private counsel, in prosecut- ing those he knows or believes to be innocent. Nor should he ever be concerned in a civil cause where he is satisfied, after a thorough examination of the facts, or from the course of the trial, that his client desires to secure an unjust or improper advantage. Quintilian well said : "Nor should the advocate let any false shame prevent him from abandoning a cause to which he has engaged under an impression ' See Courvoisier's Case, Sharswood's Legal Ethics, Appendix No. 1; Littell's Living Age, Vol. 24, pp. 180, 230, 306; Horten- sius, The Advocate, Chap. x. § 62 LEGAL ETHICS. 65 that it was just, when he discovers in the course of the trial that it is dishonest." By one of the edicts of Justinian it was ordered that, at the commence- ment of every trial, the advocates engaged in it should take a solemn oath, upon the holy Gospels, that they would exert themselves for their clients to the utmost in all they believed to be right and just, but they were not to uphold a cause that was villain- ous, or supported by falsehood ; and if, in the prog- ress of the trial, they discovered that a case of that kind had been entrusted to their care, they were to at once abandon it. The good Bishop of Lincoln, in an assize sermon addressed to the counsel on the cir- cuit, well summed up the matter : "If thou comest hither as to thine harvest, to reap some fruit of thy long and expenseful study in the laws, and to assist thy client and his cause with thy counsel, learning and eloquence, think not that because thou speakest for thy fee that therefore thy tongue is not thine own, but thou must speak what thy client will have thee speak, be it true or false ; neither think, because thou hast the liberty of the court, and perhaps the favor of the judge, that therefore thy tongue is thine own, and thou mayest speak thy pleasure to the prejudice of the adversary's person or cause." ' § 62. Professional compensation — The honorar- ium. — From the earliest time, and until within more modern days, it had been the custom to regard the services of the advocate as gratuitously rendered, and the reward — honorarium, as it was called — 1 Hortensius, The Advocate, 377. 5 66 ELEMENTARY PRACTICE. § 63 received merely as a debt of gratitude, not in pay- ment of a legal obligation. The origin of the theory of gratuitous services was based upon the right of the weak to demand the help of the strong, the suc- cor of protection to the oppressed. So, among the earlier Romans, the patron defended his client with- out fee or reward, as part of the general protection which he was bound to render by the nature of the tie between them. In the greater days of the Roman republic the advocate served his client, not for pecuniary reward, but to win public applause, and the suffrages of his fellow-citizens to elevate him to places of honor in the state. But when the empire took away the impulse to win public fame, by de- grading the offices formerly held in high honor, for the first time the fees to the advocate began to be paid, and so continued to be required, in more or less degree, notwithstanding the enforcement, at times, of the very stringent provisions of the Cincian law forbidding such emoluments. § 63. The right of the lawyer to compensation. — The right of the advocate to payment for his serv- ices was urged by no less a champion than Quin- tilian, in the first century of the Christian era. He said, in his Institutes: "Nor do I see what fairer or more proper mode of getting money can be sug- gested, than by means of a most honorable profession, and from those to whom we have rendered the most important services, and who, if they give nothing in return, must have been unworthy of our exer- tions. And this is not only right but necessary, since these very exertions, and the time devoted to the affairs of others, prevent counsel from increas- § 64 LEGAL ETHICS. 67 ing their fortunes by any other means. But moder- ation must be observed in this, and it is of the utmost consequence to observe from whom fees are received, and to what amount. For as to bargain- ing for fees, and taking advantage of the necessities of clients to extort money from them, this is a prac- tice which none but the vilest will attempt ; espe- cially since an advocate who has good causes and respectable clients need not fear ingratitude. But if he meets with it, it is better that sin should lie at the door of his client than himself." In more modern times, and particularly in our own country, the lawyer is deemed to be legally entitled to his professional compensation, and may recover his fees in an action at law ; a legal right discussed at more length in the succeeding chapter. But the lawyers who retain much of the principle of the old honorarium, and, be it said to tbe credit of the pro- fession, a large number do preserve that high stand- ard, are loath to resort to legal process to enforce payment of their fees. Indeed, it is such a viola- tion of a rule of professional ethics, that the lawyer should seek the aid of the law in this behalf only in the most extreme case. In England, the bar- rister, or counselor, can not maintain a suit for his fees, while an attorney can recover his costs only after their formal and legal taxation. § 64. Retainers and contingent fees. — The custom of the bar to receive a retainer is one which all its members should uphold with full vigor. That it is to the interest of the client, by insuring the whole energy of the lawyer, is well known to those who have had experience with litigation ; and that it is 68 ELEMENTARY PRACTICE. § (35 that to which the advocate is justly entitled, is proven both by custom, and every rule of profes- sional ethics. Contingent contracts for fees, while enforceable at law, and, in these days, partially sustained by usage, should generally be avoided as tending to lower professional prestige. While the lawyer's charges against the unsuccessful client may, very properly, be less than if his case is won, it must be remembered that he is entitled to compensation for his services, and that he transgresses a rule of high professional ethics if he bind himself to receive his reward only out of a verdict. Very frequently the lawyer is asked if he will accept a case on a contin- gency, and often he is divided in his mind between a desire to secure the business and a fear that he will transgress a rule of ethics ; and herein lies the difficulty of solving the question. §65. Ethical rules gOTerning contingent fees. — Speaking personally, the writer believes these rules to be fair. If the client is a very poor person, and unable to pay any fees — imagine the case of a poor widow desiring to recover damages for the death of her husband, caused by the negligence of a railroad company — there is no good reason why the case should not be undertaken without any fee in advance, and upon an agreement that the compensation is to be paid only out of the verdict. The amount of such fee, to be paid out of the recovery, is the pinch of the question. It is clear that the higher it is the more it violates the ethical rule; and here the conscience of the lawyer must be his guide. If the client is in moderate circumstances, it would be proper to re- § 66 LEGAL ETHICS. 69 quire him to pay a small retainer at the outset, and, at the end, a fee small, if defeated, and larger, if vic- torious. If, however, it be a client able to pay, why should he not begin with a retaining fee, measured by the case, and compensate the lawyer when it is de- cided ? Rich men who desire their advocates to try their cases only on a contingency, are clients of the baser sort, and unhappy is the lawyer whose client- age is relegated to that class. For those unable to pay, the lawyer's services should be as ready as they were in the days of the Roman republic ; but as to clients of financial ability there is no reason why the lawyer is not entitled to full compensation. Cer- tainly, taking a cause from such a client only on the basis of a contingent fee is a breach of professional ethics. On no account, and under no circumstances, should the lawyer ever agree to personally defray the expenses of an action; such as costs, witness fees, etc. Champerty is a misdemeanor at common law and, in some states, is made so by statute. Profes- sionally, it is a felony. § 66. Compensation shonld be commensurate with the services rendered. — The lawyer's charges should be an index to his care for his client's interests. He ought not to cheapen his services, but should make a compensatory charge, and will not raise himself in his client's opinion by naming a smaller fee than that to which he is justly entitled. He may thus lose clients of the penurious sort; still, in the end, he will have established his clientage on a firm and enduring basis if his clients learn that he expects compensation for his services commensurate with the labors he has performed in their behalf. It goes 70 ELEMENTARY PRACTICE. § 66 without saying that he should avoid anything like extortion, but he should not fear to ask such an amount as he honestly feels himself entitled to re- ceive. If his bar has a fee bill — an agreement as to a minimum of fees — he should neither violate its terms by bargaining for lesser amounts than are therein named, nor bid against his brethren of the bar, nor have to do with would-be clients who ask him to take less than others have offered to charge for the same work. It is advisable for the lawyer to keep an accurate accounf of the charges for his professional services, itemizing them so far as practicable, and rendering his bills before the matters in which his services have been employed have grown stale. The Ameri- can lawyers would profit no little, and much better satisfy their clients, if professional bills could be itemized as minutely as those of the English attor- neys and solicitors. This does not require that every detail of work should be priced ; only that a particu- lar statement of all that he has done in a given case, or matter, will convince the client of the fairness of the total charge, and enable the attorney to decide what that charge should be. CHAPTER VI. THE LEGAL EIGHTS, DUTIES, PRIVILEGES AND RE- SPONSIBILITIES OE THE LAWYER. § 67. The lawyer's official titles. 68. The status of the lawyer, and his admission to practice. 69. The jurisdiction of the court over an attorney^ — Suspension, disbarment and attachment. 70. The lawyer's privileges and disabilities. 71. Professional communications. 72. The authority of the attorney. 73. The liabilities of an attorney at law to third parties. 74. The lawyer's responsibility to his client. 75. The lawyer's right to receive compensation. 76. Attorney's retaining lien. 77. Attorney's charging lien. § 67. The lawyer's oiBcial titles. — It is proposed to briefly consider the status of the lawyer ; the juris- diction of the courts over him ; his rights and privi- leges ; and his duties and responsibilities. The law- yer is known by various titles. In England, the barrister is a counselor admitted to plead at the bar ; an attorney, an officer who practices in courts of common law ; a solicitor, in courts of equity ; and proctors, in courts of admiralty, and in the ecclesi- astical courts. In the United States, the lawyer is known as an attorney and counselor at law, both titles being preserved in the Supreme Court of the United States, where the admission is both as at- torney and counselor, — the former being supposed to (71) 72 ELEMENTARY PRACTICE. § 68 carry on the practical and formal parts of a suit, the latter, to conduct its trial. In some of the states, e. g. Pennsylvania, the lawyer conducting an equity cause styles himself a solicitor. Generally, the title is simply an attorney at law, as covering all the em- ployment of the lawyer, and, under that name, it is proposed to consider the law as applicable to the mem- bers of the legal profession. § 68. The status of the lawyer, and his admission to practice. — An attorney at law is an officer of a court of justice, and is also one who is put in the place, stead, or turn of another to manage his mat- ters of law.^ The rules of the Supreme Court of the United States require, for the admission of attorneys or counselors, that they shall have been such for three years past in the supreme courts of the states to which they respectively belong ; that their private and pro- fessional character shall appear to be fair ; that they shall take an oath to demean themselves as such at- torney and counselor uprightly, and according to law ; and that they will support the constitution of the United States. The test oath, prescribed by the amended rule of March, 1865, in conformity to the act of congress of January 24, 1865, that the appli- cant has never borne arms against the United States, etc., is no longer required; the act of 1865, so far as it relates to the admission to the bar of the Supreme Court of the United States, having been declared to be unconstitutional and void.^ ' Bouvier Law Diet., 167; Sharswood's Blackstone, iii, 25; Ex parte Garland, 4 Wall. 333. ' Ex parte Garland, 4 Wall. 333. § 69 LEGAL RIGHTS OF THE LAWYER. 73 In the several states the rules regulating the ad- mission of attorneys somewhat differ; but in all it is required that the applicant must be twenty-one years of age; that he shall pass the required examination; and take an oath to support the federal and state constitutions. The essence of the right to exercise the office of an attorney at law is a license of some kind, granted according to the lex fori. The admis- sion being a judicial and not a ministerial act is not the subject of a mandamus.' While it is the general prac- tice of the courts in the several states, ex gratia, to permit members of the bar of other states to appear as counsel in the trial or argument of causes, such courtesy would not extend to their full admission to the courts without compliance with all the require- ments of general admission, chief among which are residence and examination.^ § 69. The jurisdiction of the court over an attor- ney — Suspension, disbarment and attachment. — As an officer of the court, and to preserve its dignity, the attorney at law is subject to the control of the court. He may be prevented from doing certain acts; he may be compelled to do others by its orders and de- crees; he may be punished by attachment; he is sub- ject to be suspended from practice; and he may be dis- barred for proper cause. It is essential to the juris- diction of the court in these matters that the acts upon which the court moves must relate to, or affect, the official character of the attorney. Over his con- duct as a private citizen, and not in connection with his office as an attorney, the court does not possess 'Petition of Splane, 123 Pa. St. Rep. 527. "In re Mosness, 39 Wis. 509. 74 ELEMENTARY PRACTICE. § 69 this summary jurisdiction/ But where the attorney has been conyicted of a crime, although not in his ofBcial character, he is subject to disbarment. In the leading case of In re Wall, 107 U. S. 265, where many of the authorities are reviewed, it was held that it is not an inflexible rule that disbarment for such an offense must await conviction, and that there are cases, of which that was one, where, after indictment, and before conviction, the court may ex- ercise its summary jurisdiction. The vigorous dis- senting opinion of Mr. Justice Field in this case is worthy of careful reading. An attorney is subject to disbarment or suspension from practice for any matter showing his unfitness to practice in the courts, for breach of his oath of fidelity to the court, or for gross violation of the con- fidence of his client. He is entitled to notice of the proceedings, and to a proper trial. The power to thus deprive him of his ofiice should be exercised with great caution and discretion ; the proceedings and judgment being subject to review by the appellate courts ; by mandamus, to restore him, or by cer- tiorari, or appeal, the practice in this matter not being uniform.^ ^ Ex parte S. & H., 95 Pa. St. Eep. 220; In re Aitkin, 4 Barn. & A. 47; People v. Allison, 68 111. 151; Anon., 2 Halst. (N. J.) 162; State V. Forman, 3 Mo. 412; State v. Chapman, 11 Ohio 430; Ba- ker V. Com., 10 Bush (Ky.) 592. ^ For a review of the causes of suspension or disbarment, 'and practice therein, see note to State v. Kirk, 95 Am. Dec. 333-340 ; note to Delano's Case, 42 Am. Eep. 557 ; note to Burns v. Allen, 2 Am. St. Rep. 847-862; note to In re Philbrook, 45 Am. St. Rep. 71-86 ; 1 Am. & Eng. Encyc. La*, title, " Attorney and Client" ; Weeks on Attorneys. § 70 LEGAL RIGHTS OF THE LAWYER. 75 In addition to the power of suspension and disbar- ment, the courts have summary jurisdiction over attorneys, punishing by attachment, viz.: to compel them to perform their undertakings, to deliver up documents, to payment of money and costs, to answer affidavits, for contempt of court, to prevent their dis- closure of privileged communications, to stay un- authorized proceedings begun by them and payment of costs therein, and to compel them to maintain good faith with their clients.' § 70. The lawyer's privileges and disabilities. — An attorney is privileged from arrest while in at- tendance in court upon professional business, while going so to attend and while returning after such attendance.^ This privilege is not universal, but is general in most of the states. His privilege from service of summons in a civil case is not so strongly upheld, and but few cases can be found where it has been extended. It has been allowed where the attorney of another bar is specially trying a case in the court where he is sued, and, also, when he is engaged in the argument of a cause in appellate courts, or in the trial of an action in the federal courts, or in taking depositions in such a court. No case can be found where a resident attorney is ' Iverson v. Corington, 1 Barn. & Cress. 160 ; Barrel v. Jones, 3 Barn. & Aid. 47 ; In the Matter of H., 87 N. Y. 521 ; In re Bunt- ing, 2 Ad. & Ellis 467; Cushman v. Brown, 6 Paige (N. Y.) 539; Earl Cholmondley v. Lord Clinton, 19 Vesey Jr. 261; Thatcher v. D'Aguilar, 11 Exch. Rep. 436; Bohenan v. Peterson, 9 Wendell 503. ^ Attorney-General v. Skinners, 8 Simons 377 ; Castle's Case, 16 Vesey Jr. 412 ; Ogden v. Hughes, 5 N. J. Law 7] 8 ; Gibbs v. Loomis, 10 Johns. 463; Secor v. Bell, 18 Johns. 52. 76 ELEMENTARY PRACTICE. § 70 free from service of civil process from his own court, even if engaged in the trial of a cause when served. "^ The lawyer is privileged in saying anything in the trial of a cause pertinent to the issue. He is not liable for saying or writing anything, however false or defamatory may be the words, provided the mat- ter was material to the issue or inquiry before the court. The important elements in the facts which entitle him to this protection are that the words were spoken or written in the course of judicial pro- ceedings, and were relevant and pertinent to the cause. To these questions all the cases of slander or libel against an attorney for words spoken or written in the trial or pleadings of a cause have been con- fined.' The disabilities of a lawyer include his acting in the case in any capacity inconsistent with his pro- fessional relation to his client. In England, and in many of the states, entering himself as bail in a case in which he is concerned, acting on both sides in the same action, even if at different trials, and, in New ' Holmes v. Nelson, 1 Phila. 217 ; Young v. Armstrong, 13 Weekly Notes (Pa.) 313; Bank u. McCandless, 6 County Court Rep. (Pa.) 327. * Hoar V. Wood, 3 Metcalf 193 ; Maulsby v. Reifsnyder, 6 Atl. Rep. 505 (69 Md.) ; Stackpole v. Hennen, 17 Am. Dec. 187, and note; Hastings ». Lusk, 22 Wendell 410; Qarr v. Selden, 4 N. Y. 91; Hollis V. Meux, 69 Cal. 625; Brook v. Montague, Cro. Jac. 90; Hodgson v. Scarlett, 1 Barn. & Aid. 232; Mackey v. Ford, 5 Hurl. &Norm. 792; Flint u. Pike, 4 Barn. & Cress. 473; Munster V. Lamb, L. R. 11 Q. B. D. 588; Newell on Defamation, etc., 429- 445 ; Townsend on Slander and Libel, § 225. ^ 71 LEGAL EIGHTS OF THE LAWYER. 77 York, purchasing a chose in action for the purpose of bringing suit thereon, are forbidden.' § 71. Professional communications. — At common law, as well as by statute, all communications made t by the client to his attorney in the course of his em- ployment are privileged ; even if the attorney is not retained, and whether or not the communication is important, or has been given without the pledge of secrecy. The privilege is that of the client and not that of the attorney, and by the client alone can it be waived, and then the waiver must be distinct, and without condition ; and this prohibition prevails against the attorney even after he has been disbarred. The communication need not, necessarily, relate to litigation, but includes all the facts given by the cli- ent in the course of his business relations with his attorney. And the rule extends equally to communi- cations of the client made to the attorney through a third person, and also forbids those representing the attorney in communication with the client — such as his clerk, or a stenographer — from testifying to a knowledge of facts thus acquired. Equal protection is given to documents or letters of the client in the possession of the attorney ; although documents which the client can be required to produce at the trial can also be demanded of his counsel. "While this rule is upheld with great vigor, there are some exceptions. Thus, communications where the relation of attorney and client do not exist are 1 Weeks on Attorneys, §§120-122; 1 Yonge & Jervis, 867, note; 1 Taunton Eep. 164 ; 1 Tidd's Pr. 230 ; Coster v. Watson, 15 Johns. 535; Craig 1;. Scott, 1 Wend. 35; Peoples. Spencer, 61 Cal. 128; People V. Coalbridge, 3 Wend. 120. 78 ELEMENTARY PEACTICE. § 72 not privileged. So, of those made to a mutual at- torney, to be forwarded to the other client, or state- ments made by the client to other parties, or by them to him in the hearing of the attorney. Nor, where the communication is made for the purpose of being communicated to the adverse party, or is made for an unlawful purpose, is it privileged. The attorney may, also, be called to prove an agreement or com- promise made by the parties litigant, and where the attorney has been called by his client as a witness to his communications, he is subject to cross-examina- tion thereon by the other party. Testamentary com- munications are not privileged, nor any communica- tions when the attorney defends an action brought against him by his client for disobeying instructions contained in such communications.' § 72. The authority of the attorney. — By virtue of his employment the attorney is authorized to do in behalf of his client, in or out of court, all such acts as are necessary or incidental to the prosecution or managenient of his suit, and which affect the remedy only, and not the cause of action.^ But he may not, without special authority, accept service of the origi- nal process, for until service the jurisdiction of the court is not established over the client, and only when that jurisdiction has been secured does the attorney's professional relation with the case begin.' Nor can he bind his client by an agreement not to appeal, or by a compromise ; and can only discharge the debtor ' The cases are collated in the American and English Encyc. of Law, title, "Privileged Communications." ^Moulton V. Bowker, 115 Mass. 36, per Gray, C. J. " 1 Wait's Actions and Def., 439. § 7a LEGAL RIGHTS OF THE LAWYER. 79 by a full payment in money. Neither has he the power to assign the claim or judgment, or release an indorser on a note. After final judgment his general authority ceases, except to receive satisfaction.' While an appearance by attorney gives jurisdiction as effectually as an actual service of the summons, the rule, both in the English and American courts, seems to be that such an appearance is not conclus- ively binding on the defendant, unless the attorney is so directed to appear, or is so employed by the per- son for whom he appears as to impliedly give him that power ; but want of such authority should be specially pleaded, and can not be questioned at the instance of a stranger to the record.^ § 73. The liabilities of an attorney at law to third parties. — To third parties he is liable for costs in- curred through his own misbehavior, ignorance or gross negligence;' and, in some of the states, for costs of sheriffs, clerks, and other oflBcials, on writs directed by him to such officers.* He is also liable for mali- ciously procuring an arrest, or an order of attach- ment, upon a claim he knows to be unfounded; proof 'Bates ». Voorhis, 20 N. Y. 325; Whitehall i». Keller, 100 Pa. St. Rep. 105; Holker v. Parker, 7 Cranch (U. S.) 436; Granger v. Batchelder, 54 Vt. 248 (s. c. 41 Am. Rep. 846, and note) ; Weeks on Attys., § 238. 2 Weeks on Attys., §198; Hill v. Mendenhall. 21 Wall. 453; Shelton v. Tiffin, 6 How. 163, and note in 12 L. Ed. 163. 'Weeks on Attys., §28. ♦Heath v. Bates, 49 Conn. 342; Tilton 1;. Wright, 74 Maine (8. c. 43 Am. Rep. 578, and note) ; Towle v. Hatch, 43 N. H. 270; Robbina v. Hill, 12 Pick. 569; Jones v. Savage, 10 Wend. 621. 80 ELEMENTARY PRACTICE. § 74 of malice being necessary to establish his liability in such cases. ^ § 74. The lawyer's responsibility to Ms client. — The legal responsibility of the lawyer to his client may be stated, generally, to be that he is liable for the want of ordinary care, and is bound to exercise reasonable diligence and skill, the skill required having reference to the character of the business which he undertakes to do. He is responsible for gross negligence; for neglect of his duties; and of the proper commands and directions of his client; or if he loses his client's deeds or valuable papers and securities intrusted to his care. His legal learning must extend to the ordinary and settled rules of pleading and practice; to the statutes and published decisions of his own state; and to the rules of law well and clearly defined, both in text-books and re- ports, and which have existed long enough to jus- tify the belief that they are well known to the pro- fession. In short, the attorney impliedly represents that he possesses the skill, and will exhibit the dili- gence, ordinarily employed by well informed mem- bers of his profession; but he is not liable for any error of judgment upon points of new occurrence, or of nice or doubtful construction.'' ' Stockley v. Hornbridge, 8 Car. & P. 16; Stowell v. Champion, 6 Ad. & E. 407; Hunt v. Printup, 28 Ga. 297; Lynch c. Com., 16 S. & R. (Pa.) 370. ^ The leading cases on the question of the liability of an attor- ney to his client are these : England— Pitt v. Yalden, 4 Burr. 2060 ; Godfrey v. Dalton, 6 Bing. 460, 467 ; Godefrey v. Jay, 7 Bing. 413 ; Montrion v. Jeffreys, 2 Car. & P. 113; Kemp v. Burt, 4 Barn. & Adol. 424; Reece v. Rigby, 4 Barn. & Aid. 202; Laidler v. Elliott, 3 Barn. & C. 738; § 75 LEGAL EIGHTS OF THE LAWYER. 81 § 75. The lawyer's right to receive compensation. — In England, the fees of attorneys and solicitors are regulated by statute and rules of court. The Lanpher v. Phipos, 8 Car. & P. 475 ; Swinfen v. Lord Chelmsford, 6 Hurl. & Norm. 890; Hart v. Frame, 6 01. & Fin. 192; Purvis v. Landell, 12 01. & Fin. 91 ; Chapman v. Chapman, L. E. 9 Eq. Cases 276. United States Courts — "Wilcox v. Plumer, 4 Peters 172 ; Marsh •B. "Whitman, 21 "Wall. 178; Natl. Savings Bank v. "Ward, 10 Otto 195; Suydam v. Vance, 2 McLean 99 (s. c. 23 Fed. Cases 477); Spangler v. Sellers, 5 Fed. Eep. 882; Alhauser v. Butler, 57 Fed. Eep. 121. Alabama — Mardis v. Shackleford, 4 Ala. 494; Lewis ». Peck, 10 Ala. 142; Goodman v. "Walker, 30 Ala. 482; Stubbs v. Breene, 37 Ala. 627. Arkansas — Pennington v. Yell, 6 Eng. 212 ; "Walker v. Scott, 8 Eng. 644 ; Sevier v. HoUiday, 2 Ark. 512 ; Palmer v. Ashley, 3 Ark. 75. California — Hastings v. Halleck, 13 Cal. 203 ; Gambert v. Hart, 44 Cal. 542; Drais v. Hogan, 50 Cal. 121. Connecticut — Brockett v. Norton, 4 Conn. 524. Georgia — Nisbet ». Lawson, 1 Ga. 275; Cox v. Sullivan, 7 Ga. 144; O'Barr v. Alexander, 37 Ga. 201. Illinois — Stevens v. Walker, 55 111. 151 ; Walsh v. Shumway, 55 111. 471; Chase v. Heaney, 70 111. 268. Indiana — Eeilly v. Cavanaugh, 29 Ind. 435 ; Walpole v. Carlisle, 32 Ind. 415; Skillen v. Wallace, 36 Ind. 319; Hillegas v. Bender, 79 Ind. 225; U. S. Mtge. Co. ■». Henderson, 111 Ind. 24; Citizens' Assn. V. Friedly, 123 Ind. 320. Kansas — Cummins v. Heals, 24 Kan. 600. Louisiana — King v. Fourchey, 47 La. Ann. 354. JIfame— Smallwood v. Norton, 20 Me. 83 ; Wilson v. Euss, 20 Me. 83; Dorrance v. Hutchinson, 22 Me. 357. Massachusetts — Gilbert v. Williams, 8 Mass. 57 ; Dearborn v_ Dearborn, 15 Mass. 316 ; "Varnum v. Martin, 15 Pick. 450; Wilson V. Coffin, 2 Cush. 316; Oaverly v. McOwen, 123 Mass. 574. Michigan — Eggleston v. Boardman, 37 Mich. 14; Babbit v. Bumpus, 73 Mich. 331. Mississippi— Fitch, v. Scott, 3 How. 86 (s.c. 34 Am. Dec. 89, 96, 6 82 ELEMENTARY PRACTICE. § 75 barrister's fee is regarded as an honorarium; it is not the subject of a contract and an action will not lie to recover it.' While the English rule at one time pre- vailed in some of the states (e. g., Pennsylvania and New Jersey) it is now universally the law in this country that an attorney at law may recover for his professional services, whether rendered in the trial of a case, or otherwise. However unfortunate the and valuable note) ; Grason v. Wilkinson, 13 Miss. 268 ; Wilkin- son V. Griswold, 20 Miss. 699 ; Coopwood v. Baldwin, 25 Miss. 268. JVew Hampshire — Hill v. Barney, 18 N. H. 607. N'ew Jersey — Griggs v. Drake, 21 N. J. Law 169, 173 ; Fenaille V. Coudert, 44 N. J. Law 286 ; Brown v. Bulkley, 14 N. J. Eq. 451 ; Nancrede v. Voorhis, 32 N. J. Eq. 524. New York — Smedes ». Elmendorf, 3 Johns. 185; Hopping v. Quinn, 12 Wend. 517, 519; Quinn v. VanPelt, 56 N. Y. 417; Bow- man V. Talman, 27 How. Pr. 212. North Carolina — Crosbie v. Murphy, 8 Ired. C. L. 301. Ohio— Hatter v. Morris, 18 Ohio 492. Pennsylvania — Lynch v. Com., 16 S. & R. 368; Mc Williams v. Hopkins, 4 Rawle 382 ; Riddle v. Poorman, 3 P. & W. 224 ; Cox V. Livingstone, 2 W. & S. 103; Wingate v. Bank, 10 Pa. 108 Krause v. Dorance, 10 Pa. 462; Braine v. Spalding, 52 Pa. 247 Watson V. Muirhead, 57 Pa. 161; Rhines v. Evans, 66 Pa. 192 Bradstreet v. Everson, 72 Pa. 124; Morgan v. Tener, 83 Pa. 305 Wickersham v. Lee, 83 Pa. 416; Moore 1;. Juvenal, 92 Pa. 484 Siner v. Stearne, 155 Pa. 62 ; Wain v. Beaver, 161 Pa. 605. Rhode ZsZandJ^Holmes v. Peck, 1 R. I. 242. Texas— Morrell v. Graham, 27 Tex. 646; Oldham v. Sparks, 28 Tex. 425. Virginia — Roots v. Stone, 2 Leigh 650. Vermont — Orooker v. Hutchinson, 1 Vt. 73. TexJ-^oo/cs— Weeks on Attys., §§284-289; Chitty on Contracts (10 Am. Ed.) 607, 608; Shearman and Redfield on Negligence 221 ; 2 Sedgwick on Damages, §§ 814, 831. ' Kennedy v. Brown, 13 Common Bench N. S. 677. The elabo- rate argument of Mr. Kennedy (pp. 683-716) reviews the history of the honorarium and is well worth reading, as is the whole case.^ § 75 LEGAL RIGHTS OF THE LAWYER. 83 lawyer may be who must thus enforce his fee, and how far such an action may remove him from an observance of strict professional ethics, it is clear that he is entitled to recover for the services he may render his client. Where there is not an express contract, he may recover reasonable compensation upon a quantum nneruit. He is permitted to enter into a contract with his client providing for the amount of his fee, and such contract may extend to cover a share of the amount recovered ; provided it be neither oppressive nor champertous. To render such a con- tract void for champerty, it now seems to be held that the agreement must extend to carrying on the case at the expense of the attorney.' But an agreement for a fee contingent upon the successful interference with the due enforcement of the law is void as con- trary to public policy. Thus, it has been held that a contract whereby an attorney at law undertakes, for a contingent fee, to procure a settlement of a criminal charge, can not be enforced.^ So, also, where a client has a claim against the government, to enforce which a legislative mandate is required, and his agreement with his attorney is for the pay- ment of a contingent percentage of the amount re- ceived, and the principal service contemplated and actually performed by the attorney is in the pro- curement of the necessary legislation, the contract is void as against public policy.' Where, however, the special agreement is void for champerty, the attor- ney may recover on a quantum meruit} » Bowman v. Phillips, 13 Am. St. Eep. 297-300, note. *Ormerod v. Dearman, 100 Pa. St. Eep. 561. ' Spalding v. Emery, 149 Pa. St. Rep. 375. 'Weeks on Attys., §346. 84 ELEMENTARY PRACTICE. § 76 § 76. Attorney's retaining lien. — Attorneys have a general lien upon all the papers and documents of their clients in their possession, not only for all costs and charges due them in the particular cause to which such papers and documents relate, but, also, for costs and charges due to them for other professional busi- ness, and for their employment in other matters.' The essentials of the lien are that the debt must be due the attorney in his professional employment, and that the papers came into his possession in his pro- fessional character. The lien of the attorney also extends to funds in his hands for payment of his fees and disbursements in the cause in which such moneys are received, as also for services rendered in other matters.'' § 77. Attorney's charging lien. — The attorney has a special, or charging, lien upon funds in court re- covered through his labors. The concensus of the authorities is to the effect that the lien does not attach until judgment. The courts have differed in their decisions as to whether the lien covers fees and dis- bursements, as well as costs, and the question as to how far the client may dispose of the judgment or recovery, to defeat the claim of the attorney, has been ■Story on Agency, §383; Weeks on Attys., §371; Ex parte Sterling, 16 Ves. 258; Ex parte Pemberton, 18 Ves. 282; St. John V. Diefendorf, 12 Wend, 261; Hooper v. Welch, 43 Vt. 171; Du Bois's Appeal, 38 Pa. 231 ; McKelvy's Appeal, 108 Pa. St. Rep. 615; Dennett v. Cutts, 11 N. H. 163; Howard v. Osceola, 22 Wis. 453; Stewart v. Flowers, 44 Miss. 513; Casey v. March, 30 Texas 180. «/ra re Pascall, 10 Wall. 483 ; Hurlburt v. Bingham, 56 Vt. 368; In re Knapp, 85 N. Y. 284; Balsbaugh v. Prazer, 19 Pa. St. Rep. 95; McKelvy's Appeal, 108 Pa. St. Rep. 615. § 77 LEGAL RIGHTS OF THE LAWYER. 86 variously adjudicated. In England, attorneys and solicitors have been given their lien upon the money or property recovered for their costs and disburse- ments by very strong decisions, and such is now the law by statute, 23 and 24 Vict. C. 127. In the fed- eral, and in some of the state courts, this lien is held to extend both to costs and advancements and to fees for services rendered. In others, it has not been ex- tended beyond costs and disbursements, while, in still others, it is regulated by statute.' 'See cases collated in notes to Andrews v. Morse, 31 Am. Dec. 752, and State of Texas v. White, 77 U. S. 483, L. Ed. Book 19, pp. 992, 994 ; also see 1 Am. and Eng. Encyc. of Law, 970-973. CHAPTER VII. PRACTICAL HINTS TO THE BEGINNER, § 78. Knowledge acquired by experience. 79. Economize time. 80. Be accurate. 81. Be cool and self-possessed. 82. Maintain a thorough system. 83. Cultivate a courteous and gentlemanly manner. 84. Avoid speculations. 85. Promptly attend to your correspondence. 86. Cultivate the acquaintance of other lawyers. 87. Avoid politics. 88. Professor Washburn's advice. § 78. Knowledge acquired by experience. — It is the purpose of this chapter to add a few practical suggestions, proving, it is hoped, of some value to the young lawyer. Many of them are gleaned from the experience of active practitioners, and all, it is believed, are rules worthy of observance by every lawyer. No profession gives its members the profit of experience in a more practical and positive form than that of the law. Such experiences are often sad ones, and many a lawyer has frequent cause for regret that he has been obliged to gain them in so stern a school and from so hard a master. The errors into which the novitiate sometimes falls may lead to disastrous results, although his motives and intentions may have been of the best. As Chief Justice Sharswood said, in speaking of the practice. (86) § 79 PRACTICAL HINTS TO THE BEGINNER. 87 of the law, " there are pitfalls and mantraps at every step," and the youthful lawyer has need of the great- est caution to avoid them. It is the hope of the writer that he may, in some small degree, at least, hold out a helping hand to his younger brother, and assist in advancing him in the journey of his pro- fessional life. He would not assume to himself the embodiment of the virtues which he sets forth ; in- deed, his own experiences show him how often he himself has been derelict in following some of the directions which he now has to suggest? However, it is his hope that these hints may aid some others in their future course, and that his more experienced brethren of the bar will join him in agreeing that the suggestions made are worthy the attention of the youthful and inexperienced attorney. § 79. Economize time. — ^Time is the lawyer's cap- ital, and he can not afford to waste it, but should let every moment of his working hours count for some- thing. The lawyer must strictly guard against this loss of time, for from it flow habits of sloth and neg- ligence, among the greatest enemies of the profes- sion. A lawyer's business is of such a varied char- acter, and so widely differing in its many kinds, that he can not always work continuously at one matter. Interruptions must necessarily come to him, tending to lax habits and to want of close and continuous labor. If the beginner will be orderly in the arrange- ment of his business hours, and consider each one wasted as deferring so much longer the attainment of his professional success, he will find that he has mas- tered the important rule of economizing time, and 88 ELEMENTARY PRACTICE. § 80 that it is one returning him rewards worthy the sacri- fice. § 80. Be accurate. — This accomplishment can not he overrated. In all the work of the profession it should be a shining light, toward which the lawyer's eyes are constantly turned. Last of all will his cli- ent, or the public, forgive his error of inaccuracy. Many an important legal document has been robbed of its intended effect, and many a cause irretrievably lost, through some clearly inexcusable want of accu- racy. The reports teem with such cases. While, under the modern practice, the statutes of amend- ments have been liberally extended, and mistakes in pleadings can now be corrected at almost any stage of the proceedings, it must be remembered that they are usually permitted only at the cost of the party applying for them. The mortification which the at- torney must suffer, when he remembers that his own want of care is the cause of such expense and delay to his client, would prove a bitter, but, probably, wholesome lesson. There are mistakes made by a law- yer which amendments can not cure nor the courts relieve a client from their consequences. Such are errors in preparing a deed, a will or a contract ; or in searching a title ; or in the preparation, or trial, of a cause. When these errors are the result of a want of accuracy or care on the part of an attorney, how can he expect his client to again engage his services or recommend him to others? If his mistake comes to the knowledge of the public he must certainly suf- fer in reputation, and may be long in regaining a position at the bar lost through his own careless- ness. § 81 PRACTICAL HINTS TO THE BEGINNER. 89 § 81. Be cool and self-possessed. — One working in a hurry must have his wits about him, or he is likely to make mistakes an alert opponent is sure to detect. The lawyer must frequently work quickly, and is often compelled to do things in haste, but he must keep possession of his nerve, and, under all circum- stances, remain cool and self-possessed. This is a difficult lesson to be learned, but its accomplishment is of inestimable benefit to the lawyer. He most needs this quality in the trial of a cause, for the court-room is an exciting spot to the lawyer, hum- drum as it may seem to the mere spectator. In a closely contested legal battle the tide of victory often ebbs and flows, and the advocate should neither be so exultant at the one, or disheartened at the other, as to lose his equilibrium. Many times a witness fails to respond in his evidence as was expected of him ; often the rulings of the court are adverse when the contrary was looked for ; and there are cases where a fine theory upon which counsel has built his case goes by the board. In all these instances, par- ticularly the last, the advocate needs to summon to his relief his utmost self-possession and his strongest nerve. His excitement now may lose him his cause, while if he retains command of his powers he may discern an avenue of escape, or a loop-hole through which he may see the defeat of his enemy. Of a famous jury lawyer, now a distinguished jurist, one of his contemporaries well said : "In the trial of a law suit he was like an opossum slung through a tree ; if he lost his hold in one foot he caught on by the other, and if he was forced off all his feet he swung by his tail." The simile was homely, but none the 90 ELEMENTARY PRACTICE. § 82 less true, and was said of a lawyer than whom few have been more difficult to beat in a law suit. § 82. Maintain a thorough system. — ^The lawyer can not have wiser rules for his guidance than those commanding him to be systematic and orderly in his profession. A thorough system, rigidly adhered to, will result in the greatest benefit. The attorney needs it in the care of his office and client's business, papers and affairs ; it is of the utmost value in the preparation of a cause, and in framing the brief ; while at trial the advocate who is without a system, or theory, as it is often called, is as badly off as a mariner without chart or compass. The lawyer of systematic and orderly mind and habits will accom- plish more and better work, and in a shorter period of time, than can two others without this valuable ac- complishment. The attorney at law should always have his legal affairs in such good order and so well arranged that his sudden death will not subject his clients to injury or delay. The lawyer is a custo- dian of valuable papers which, in after years, may prove of great assistance to others. He should have them so arranged and filed that not only can he readily put his hand on them, but that, after his death, others can find them. The writer has in mind a very important cause where papers of value — so valuable indeed that a great sum of money de- pended upon them — were left with one of the coun- sel in the case, but, after his decease, his clients were absolutely unable to find them, even after a most diligent search. Although some of the papers were partially supplied by secondary evidence, a § 83 PRACTICAL HINTS TO THE BEGINNER. 91 large sum was irretrievably lost by the lawyer's carelessness. § 83. Cultivate a conrteous and gentlemanly man- ner. — It has been well said that success in life de- pends very much upon the number to whom one can make himself agreeable. This is peculiarly applica- ble to the lawyer, and especially to the beginner; for among his friends he must expect to find his first clients. The young man who has the faculty of winning and keeping friends will soon find himself on the road to professional success. If his friends find him to be worthy their confidence he can ex- pect their active assistance in bringing him other clients and professional business. Without friends, or the capability of making them, the beginner at the bar is sadly handicapped. Elsewhere reference is again made to the subject,' but it is well to also here state that the lawyer should refrain from abuse and browbeating of witnesses and opposing parties, not only arousing the sympathies of the jury, but, also, as likely to turn those thus abused into decided enemies. The successful lawyer can not expect to be without enemies^ — the very nature of the profession assures them — but he should not make them by in- dulging in vilification and vituperation at trial. The lawyer should never forget that he is bound to sus- tain the character of a gentleman, and that any ex- hibition of coarseness, vulgarity, undue forwardness, or lack of dignity, is sure to injure his professional reputation. A considerate respectfulness of de- meanor, far removed from anything like pertness, 1 Part 4, Trial Causes, Chapter XXIX, §§ 309, 310, 312. 92 ELEMENTARY PRACTICE. § 84 bantering, jocular familiarities, and attempts to be sharp and smart, will characterize the successful lawyer. He needs to keep a constant watch upon his temper, for no profession or calling in life is so likely to sour the disposition, or cause a growth of irritability, as that of the law. A calm and unruffled manner, even in the face of the most exasperating trials, or in the hour of the most mortifying defeat, marks the lawyer who is in command of himself, and shows him to be one who has mastered the cardi- nal virtue of self-control. § 84. Avoid speculations. — Of all men, the lawyer should be the most conservative in his personal busi- ness affairs; his conservatism in his own concerns recommending him as an adviser and guide for oth- ers, as clients will avoid the speculating lawyer, be- lieving him likely to mislead them in their affairs. The attorney is frequently called upon to advise those who seek cautious and safe investments, and if he be regarded as a speculator and taking chances with his own property, how can he be considered to be a safe counselor ? Again, the lawyer is apt to be weaned from his profession if he indulges in schemes of rapid money-making. Every bar, in reviewing its history, can point to those of its members who have thus "jumped for the shadow and lost the bone." A good clientage, well cared for, will furnish an in- come which fires can not consume, floods wash away, or panics destroy; and the lawyer who lives within that income, and invests his surplus earnings care- fully and safely, is sure to end his days in comfort, and to leave a competence to his family. Above all should the attorney avoid any speculations with his § 85 PRACTICAL HINTS TO THE BEGINNER. 93 client. He may often be importuned to purchase his client's judgment, claim or property, and to be shown the glittering prospect of gain through such a source. He is sure to lose his client's regard, if he wins, and to forfeit his respect for his business judgment, if he loses. § 85. Promptly attend to your correspondence. — It can be safely said that the lawyer who at once re- plies to his clients' or correspondents' letters is sure to retain their esteem and business. It should be an inflexible rule that all the correspondence of the office should be disposed of the first thing in every busi- ness day. It is an unfailing rule in a successful busi- ness office, and is of equal value in that of the lawyer. An index to a lawyer's success can be found in his letter copy-book; if it is there seen that he is prompt in his correspondence, rest assured he has his share of the clientage of his town. There are lawyers who have said that clients' letters often answer themselves if left alone; that is, do not require an answer after a few days. That may occasionally be true, but the lawyer who falls into such a habit will sooner or la- ter find that he has no letters to answer — beyond the duns of his creditors. To change an old saying: "When the letter-carrier ceases to come through the ent of the government to 1880. Eighth. The Federal, Reporter, a continuation of the reports of those courts, and extending from 1880 to date. Ninth. The English Common Law Reports ; En- glish Chancery; Exchequer; House of Lords' Cases, including Clark and Finelly's Reports ; and the Law Reports, commencing in 1865 ; to which might be added the older British reports, antedating the Com- mon Law, Chancery and Exchequer, which began in the American edition at about 1815. The older English Reports, now accessible, are these (the name of the court in small capitals and of the reporter in Roman type): House of Lords: Brown, Dow, Bligh. Chancery: Vernon, Peere Williams, Atkyns,Vesey Sen., Vesey Jr. King's Bench and Queen's Bench: Dyer, Coke, Croke, T. Raymond, Saunders, Modern, Salkeld, Lord Raymond, Strange, Wilson, W. Blackstone, Burrow, Cowper, Douglass, Durnford and East, East, Maule and Selwyn. , 118 ELEMENTARY PRACTICE. § 106 Common Pleas: H. Blackstone, Bosanquet and Paller, Taunton. Exchequer: Anstruther, Price, Daniell, McClel- land, Wightwick. The last four being included in an American edition, entitled Exchequer Reports, in six volumes, and published in Philadelphia in 1835. Nisi'Prius: Peake, Espinasse, Campbell. Ecclesiastical: Lee, Haggard, Phillimore, Ad- dams, Curteis ; all combined in the English Ecclesi- astical Cases, in seven volumes^ published in Phila- delphia in 1831, and including valuable probate and divorce cases. Tenth. Special Reports: such as American Rail- road and Corporation Reports, American Negligence Cases, American Electrical Cases, National Bank Cases, etc. § 106. The cost of smcli a library. — The text-books and the reports here named could probably be pur- chased at a cost between $3,500 and $4,500, depend- ing somewhat upon the prices of the reports of the state of the lawyer's practice. Many of these books can be secured at second-hand, and some of the older English reports at a very low figure. The cost of a lawyer's library can, of course, be much extended beyond that named, by adding all the text-books and the full reports of a number of the states. The object has been to suggest a library with as little duplication as possible, but still supplying the lawyer with what will generally fill his wants, and one by which he can prepare his cases without the necessity of using a large public library. CHAPTER XI. GIVING PROFESSIONAL ADVICE. § 107. The duties of the office lawyer. 108. Responsibility in advising others. 109. The lawyer's ethical position in advising others. 110. Mastery of the facts necessary to properly advise. 111. Avoid hasty and immature opinions. 112. Written opinions. 113. Advise with judgment and discretion. 114. Cases involving small amounts should be compromised. 115. Advising compromises. 116. Other reasons for advising compromises. § 107. The daties of the office lawyer. — It is now intended to consider, somewhat generally, the vari- ous kinds and classes of labor the attorney performs in his office and outside the preparation of causes, and of procedure ; those subjects being discussed in the third part of the entire work. It is quite impos- sible to cover everything the lawyer is called upon to do outside the court-room, because he is such a gen- eral agent of the public that his duties are often ex- tended beyond those of a purely legal nature. For the reason that one is a lawyer some people, and espe- cially the most ignorant, consider him as gifted to do anything and everything, and consult him at all times and upon all occasions ; often upon subjects far re- moved from that of the law. This is especially the experience of the attorney who practices his profes- (119) .120 ELEMENTARY PRACTICE. § 108 sion in a smaller community. For example, should one of his fellow-townsmen aspire to public office by appointment, he hastens to the lawyer to draw his petition or application ; if he desires to have a mu- nicipal ordinance drawn he deems the lawyer alone fitted for the work ; should he wish for a street lamp or a fire-plug in front of his residence, the petition must be prepared by the attorney ; when he desires to aid or prevent legislation, he needs must ask the lawyer to join the "third house" of the legislature and there become a lobbyist ; and when he dies, and obituary resolutions are to set forth his good deeds, they must emanate from the professional pen. Hon- ored is the lawyer who is called upon to serve his fellow-citizens in all their affairs, but it can not be added that he is always happy in, or well paid for, such labors. In a general way, the attorney's office work of a legal character may be included within these subjects: Giving Professional Advice ; Drawing Last Wills and Testaments ; Preparing Contracts ; Conveyancing ; Searching Titles and Making Abstracts ; Settling the Estates of Decedents and Insolvents ; the Formation and Professional Care of Corporations, and the Col- lection of Claims. To these subjects, and in the order given, this and the succeeding chapters of this part of our work are devoted. § 108. Responsibility in advising others. — Giving professional advice is a most important part of the lawyer's professional duties. It involves the highest obligation, calls for the exercise of marked skill and ability, and requires the utmost care and caution. No one occupies a position more responsible than § 109 GIVING PiROFESSIONAL ADVICE. 121 does he whose advice becomes the rule of conduct of his fellow-men. When that counsel has to do with the preservation of his client's property, and, often, of his domestic felicity and personal honor, the law- yer must feel the burden imposed upon him. In the trial of a cause, he takes the facts and circumstances as they are, and feels his duty to be bounded only by the proper trial of the case ; but in giving advice he is creating facts which may result in litigation, hence, there is upon him the greater responsibility, and one he can not shirk, for upon the result of that counsel may possibly depend both his client's weal and his own fame and professional standing. § 109. The lawyer's ethical position in advising others. — At the outset, the lawyer must be sure that he is in a position to advise his client. By this is meant that it must be certain that he is in no manner concerned, either personally or professionally, in an- tagonism to his client's interests, touching the ques- tions upon which an opinion is sought. When offered his retainer the lawyer should disclose to his client any reason why he may not serve his interests, or of any relation he may bear to the other parties. It is a delicate position, but it is all important that his course in this regard should be governed by the high- est rules of honor. The client's cause must not be jeopardized by the lawyer's fear, favor or affection, and, before all else, he must not have any interest or connection, however remote or indirect, with both sides of a cause; his loss of reputation in this re- spect — and it is a trait of character closely watched bv the public — would be irreparable. He had far better lose valuable clients than to be known as a 122 ELEMENTARY PRACTICE. § HQ lawyer in whom the most implicit confidence can not be placed. At times the counselor will find himself in the embarrassing position of being asked to serve oppos- ing parties, both his regular clients ; this will hap- pen more frequently than the beginner would sup- pose, and, as his practice increases, he will be sur- prised to find how often he is placed in this difficult situation. His sense of honor, as well as the ethics of the profession, command him to decline to act for either party. In such a case, and before the employ- ment of other counsel, he is justified in seeking a settlement of the differences between his clients, by bringing them together, and endeavoring to act as a mediator and peace-maker ; but failing in this, let them be advised and their cases tried by others. Temporarily, his clients may each feel themselves entitled to his services, but in cooler moments they will appreciate the justice of his action, and feel as- sured that when he does act for them their interests will be honorably and faithfully guarded. § 110. Mastery of tiie facts necessary to properly advise. — In giving professional advice it is of the utmost importance that the lawyer should understand all the facts and circumstances concerning which he is to give his opinion. To that end he should thor- oughly cross-examine his client to elicit all the facts, some of which he may have inadvertently omitted, or has not considered necessary to an understanding of the matters upon which he desires to be advised. JJ'or the same reason the client's documents should be examined and carefully read, rather than to de- pend upon his statements of their contents. There § 111 GIVING PROFESSIONAL ADVICE. 123 is a class of clients who come to their attorney as if he were a judge to decide their causes rather than a counselor to properly guide them aright after a com- plete knowledge of all the evidence, favorable or otherwise. Such clients are apt to conceal the weak- nesses of their cases, thus hoping for a favorable con- sideration and adjudication. This trait of character shades through many of the lawyer's clients, show- ing in less degree in those of experience and educa- tion, but found to some extent in nearly all. There- fore, the lawyer must draw out all the facts before he €an safely give his opinion. His cross-examination should be as rigid as the client may expect from op- posing counsel when in court, and he should be warned to give his lawyer the vulnerable points of his case, and to tell him all of its doubtful facts. No oue can safely advise a client until he is in possession of a full knowledge of the weakness as well as of the strength of his cause. Indeed, of the two the first is the most important, because it will be there that the client will fail, if at all, and, hence, his lawyer is unable to give him the counsel of wisdom until he first knows where that counsel is most needed, and concerning what facts his legal guidance is of the greatest necessity. Again, the trustworthy lawyer will not lead his client into litigation if he feels as- sured its result will be unsuccessful, and to be put in a position to give that advice he must be made aware of the danger points in the case, and of the places where the ice is the thinnest, for there the fatal acci- dent will surely happen, if it is to occur. § 111. Avoid hasty and immature opinions. — Un- less entirely confident of his ability to answer, the 124 ELEMENTARY PRACTICE. § HI lawyer should make a thorough examination of the questions submitted by his client, and give his opin- ion only after he is satisfied he is right.- A judg- ment hastily formed may cause him subsequent regret and mortification. The beginner is apt to feel that his client expects an immediate answer, and, to show that he has acquired a knowlege of the law, is tempted to give his opinion without an ex- amination of the authorities. This is a mistake. The client, if he is worth having, will more highly value an opinion given after a careful study of the law than one pronounced off-hand, and will com- mend his counsel for his care and caution. Unless sure of his position, the proper thing for the lawyer to say is that the question is worthy of an examina- tion of the law, and to ask that he be permitted to answer after such investigation. For a similar rea- son, curbstone opinions, as they are called, should be avoided. Let the client be advised in the office rather than on the street, and then in a manner be- fitting the question propounded. It is very common for some persons — usually those looking for cheap law — to obtain a lawyer's opinion gratis, on the street, in the train, at the club, or in some other public place. The law there given is often as valu- able as the price paid for the opinion — that is, noth- ing. The lawyer cheapens himself, and lowers his reputation if he falls into the habit of giving his opinion whenever and wherever he is asked a legal question. Apropos of this is the familiar story told of an English barrister, who, when dining with his client, was asked over the after-dinner wine for his opinion ^ 112 GIVING PROFESSIONAL ADVICE. 125 upon a question of law. The answer was given, and later the host was no little surprised to receive a bill for the professional services thus rendered. He paid the charge, but returned a bill for the Wine and din- ner consumed by the lawyer, who retaliated by a qui tarn action against the gentleman for selling wines and spirits without having a government license ; a clearly defined instance of the lex talionis. § 112. Written opinions. — A written answer is often appreciated by the client, and usually com- mands a better fee. However, it becomes the cli- ent's property, and if it is lame in its conclusions, or is lacking in the legal positions it assumes, it may sometime come back to plague the lawyer, and cause him subsequent mortification and regret. It is suggested that a signed opinion should only be given when the lawyer feels assured he has made no mistake. A written opinion should commence with a statement of the facts as given the counsel, fol- lowed by the questions he is called upon to answer, and should state that the facts as given are assumed by him to be true, and to be susceptible of proof. § 113. Advise with judgment and discretion. — The lawyer should be candid with his client, and frankly tell him his opinion of the case. If, in his' careful judgment, he can not succeed in his cause or pursue the course concerning which he seeks advice, he should not hesitate to so advise him. He must lay aside the temptation to lead his client into a law suit whereby fees may be gained, or to please him by ap- proving his apparent desire for litigation. The law- yer who does not always bend his opinions to tbe views or desires of his clients may lose some busi- 126 ELEMENTARY PRACTICE. § 114 ness at the. beginning, but, in the end, he will have earned the valuable reputation of discretion, good judgment and conservatism, and will attract busi- ness of value, as well as employment from those who depend upon him for their legal guidance; the cli- ents whom all lawyers most desire. § 114. Cases inTOIving small amounts should be compromised. — One of the greatest accomplishments the lawyer can acquire is to learn when "discretion is the better part of valor "; when to advise his client to seek a compromise rather than to go to law. Every experienced practitioner will readily admit that as many cases are lost from want of judgment in this direction as through absence of care in their prepa- ration and trial. It has been said of more than one famed lawyer that "before trial he was as timid as a deer, but at trial as brave as a lion." Again, there are causes, and such are among the first to come to the beginner at the bar, where the amount involved is so small that to gain is but to lose. Compromises in cases of this clsss should be cautiously sought, for the beginner might thus obtain a reputation for cowardice; yet, he must bear in mind the result of the litigation which may show to his client that while he has won a small verdict, and all he claimed, or has successfully defended another's action for a trifling amount, still, from the expense of the litiga- tion and the loss of his own time — matters not usually considered by the client when fired with a desire to go to law — he may find that he has virtually come out the loser. Success, like revenge, may be sweet, but ofttimes the client may think it has been too dearly bought, and the flower of victory may § 115 GIVING PROFESSIONAL ADVIGE. 127 contain the thorn of discontent with his lawyer, who did not at the outset advise him of the financial re- sult; a matter of no little moment to the average cli- ent. § 115. Advising compromises. — ^The authors of a late work, and themselves skilled and experienced practitioners, have said on this subject: "It is often expedient as well as just to advise a com- promise and thus prevent litigation, or, as the case may be, put an end to it. In many instances a fair compromise is preferable to a contest. * * * The interests of the client are always and everywhere the chief consideration, and the conscientious advocate will not sacrifice or yield them to promote his own interests. He will not, on the one hand, allow the hope of distinguishing himself in court to influence his course, nor, on the other hand, will he permit a desire to secure the reputation of a lawyer, ' who better loves peace and compromises than glory,' to impel him to advise a client to yield what in justice ought not to be yielded. While it is true that a lawyer's first duty is to his client, yet it is not wrong for him to secure, if he can do so without a breach of duty or a betrayal of trust, the reputation of ' a maker of compromises.' It carries us but a little aside from our direct path to say that it brings busi- ness to a lawyer to have it known that he advises compromises rather than provokes or encourages litigation, for such a lawyer gets credit for honest dealing that those lawyers who never effect com- promises do not obtain. But the interests of the client overshadow all other considerations, and the lawyer who advises the acceptance or rejection of a 128 ELEMENTARY PRACTICE. §115 proposal of compromise must know his client's case in all its details, and carefully weigh the probabili- ties of success or defeat. It has been said, that 'the rights of society are so strong that no forensic con- test should be waged, until at least one effort to com- promise has been honestly made,' but this is true only in a limited sense, if true at all. The rights of society can not extend so far as to require the sacri- fice of private rights where Justice underlies those rights. It is no doubt expedient as well as just to make an effort to compromise in many cases before entering into contest, but it is not so in all. It is well enough always to act upon Shakespeare's ad- monition to 'beware of an entrance into a quarrel,' but it is not always necessary to seek a compromise before taking action. It has been said that ' there never was a just compromise,' and this, although somewhat extravagant, in a sense is true, for the term itself implies that one of the parties at least surrenders part of his claim or something to which he is justly entitled ; yet the advice given long ago still remains good in many cases : ' agree with thine adversary quickly while thou art in the way with him.' Litigation is expensive, and it is often ad- visable to give up something of that to which we think we are justly entitled rather than to incur the danger of losing it all or having the better part of it eaten up by litigation. This is especially true where the question at issue is a doubtful one, or the amount involved is small and no great principle is at stake. " ' ' 1 Elliott's General Practice, § 446. § 116 GIVING PROFESSIONAL ADVICE. 129 § 116. Other reasons for adrising compromises. — In addition to the reasons already stated showing it to be advisable to seek a compromise rather than to resort to the law, these may be given. The client's domestic peace and happiness, or that of his family, may be endangered by litigation, and it might be wiser for him to sacrifice pecuniary gain than to lose the affection of those who are endeared to him by family ties. Among the uncertain things in this life is the result of a jury trial, and that should be taken into consideration in determining the advantages of a compromise. The client may meet unexpected difficulties, and matters which can not be foreseen may arise, any one of them proving fatal to success. He must depend very largely upon the evidence of witnesses, as well as upon the judg- ment of jurors and the views of the court, none of whom are always infallible. In short, very few cases are entirely free from doubt. Prejudice is another element to be considered. It is a strong factor in all trials, particularly before juries, and the client may be one against whom bias may exist. Thus, corporations can not always expect to find perfect justice for them impaneled in the jury- box ; a rich man, sued by a poor one, may be com- pelled by the jurors to give up more than they would require from others ; a party's business, or religion, or manner of life, or general reputation, may mili- tate against him ; and the client may be unknown to the citizens of the community where his case is to be tried, the "man at home " often having an unjust advantage over the "stranger within the gates." 9 130 ELEMENTARY PRACTICE. § 116 Again, the age or ill health of a client, or of his wit- nesses, may cause death to end the case before it can be reached for trial ; or a defendant, if recovered against, may be execution proof, whereby there may be a fruitless judgment. These and many other rea- sons which will suggest themselves to the lawyer, should be carefully considered in determining whether it is not wise to seek a compromise before entering into litigation on behalf of the client. CHAPTER XII. DRAWING LAST WILLS AND TESTAMENTS. § 117. Knowledge of testamentary law required. 118. Statutory requirements for wills. 119. The intention of the testator controls. 120. Competency — Undue influence. 121. Attesting witnesses. 122. Powers given the executors. § 117. Knowledge of testamentary law required. — The beginner in the profession should carefully pre- pare himself in the law of wills, studying their forms and familiarizing himself with the requirements of testaments, particularly as to their execution and the proper mode of witnessing them. It is a branch of the law of which the practitioner should have a good stock in hand. He may be suddenly called upon to draw a will, perhaps by a bedside, without opportunity to consult his library, or even to secure a form-book, and should be prepared for such an emergency. It is a branch of the law in which its usual forms and statutory requirements should be so well known as to be at his tongue's end. In short, the lawyer should always be able to successfully stand an examination on testamentary law. For example, the familiar clause attesting the execution of the will : " Signed, sealed, published and declared by the above-named testator, as and for his last will and testament, in the (131) 132 ELEMENTARY PEAGTICE. § Hg presence of us, who, at his request and in his pres- ence, have hereunto subscribed our names as attest- ing witnesses," (or whatever may be the usual form of attestation in his state) should be to the lawyer as is the alphabet to the school boy. The beginner would find it wise to thoroughly read established and adjudicated wills, particularly those set forth in the leading text-books, so that he may make their language and forms most familiar, and easily to be recalled when required. § 118. Statratory requirements for wills. — Note well the requirements of the statute law of the state governing testaments. Among them observe the age at which a testator is competent to make a will ; if a married woman can become a testatrix without the consent of her husband ; under what circumstances bequests or devises to religious or charitable uses are void ; whether or not seals, and how many witnesses are required ; and also how far secondary estates or executory devises can be created. In some of the states a devise to the wife is declared by statute to be in lieu of dower, even if not so stated in the will, in the absence of an expressed intention to the con- trary ; a clear opposition to the common-law rule. § 119. The intention of the testator controls. — It is to be remembered that the intention of the testator is to govern in the interpretation of his will ; and as that intention can only be gathered from the language he uses, it is of the utmost importance that he should be made aware of the meaning of those words as de- fined by the adjudicated cases, or by statute. For this reason the instructions for the will should be taken from the testator alone, if that be possible. If §120 DRAWING LAST WILLS AND TESTAMENTS. 133 time permits first obtain his approval of a rough draft, feeling assured that he is fully aware of its terms and legal and practical effect. In this connec- tion it is well to remember that the average testator does not think much beyond the present, or, at most, not beyond the lives of those then in being. Hence, the scrivener of his will should call his attention to the possibilities and contingencies which may arise, and ascertain if he desires to provide for them. Many a will, speaking from the death of the testator, but executed by him at a date long prior thereto, and per- haps thought by him to then take effect, has robbed one, or enriched another, in a manner quite contrary to the real intention of the testator ; a will, however, which must be interpreted by the language he has used, and distribution made accordingly. § 120. Competency — Undne influence. — The com- petency of the testator to make a will, and the absence of undue influence, should be assured. If the writer of the testament is named as a legatee or devisee he should be able to prove by others that the testator so intended, thus avoiding a possible accusation of fraudulently altering the will, or of inserting that which the testator did not intend. Romances have been founded on such circumstances, but sober facts, not dissimilar, are found in more than one reported decision. By far the safest rule is to have the will drawn by another, when the lawyer is to be remem- bered by a bequest or devise. §121. Attesting witnesses. — The attesting wit- nesses should be persons of good character and of some intelligence. They must be others than those named in the will as legatees, and, in attesting the 134 ELEMENTARY PRACTICE. § 122 testator's signature, should state their residences. In some states this is required by statute, but it is always wise to include them. The witnesses need not be aware of the contents of the testament, but should attest its execution at the testator's request, and in his presence, and must see him sign the will, or hear him declare his signature. § 122. Powers giyen the executors. — There are in- stances where it is wise to suggest to the testator the advisability of giving the executors full power of sale of his real estate. In cases where there are no debts, the takers are all sui juris, there is no question of testamentary taxation, and the executors are per- sons of the highest character and enjoy the full con- fidence of the testator, and in order to save publicity, it is well to provide that no inventory or accounting of the estate shall be published or exhibited in the probate courts, or in the office where they are usually filed. It is but rarely that such a provision can safely be inserted, and may in some states be pro- hibited by statute; but there are instances where such a course has been found to be very satisfactory, if only that it defeats the curiosity of a certain in- quisitive class of citizens who run to the probate records to note the magnitude of an estate of any value, and thereby gain opportunity to harass and importune the enriched legatees. In addition, some men leave behind them investments which they do not care to have known to every one, and so take this course to avoid public knowledge of their hold- ings. CHAPTER XIII. PREPARING CONTRACTS. § 123. Skill required in drawing agreements. 124. The outline of a contract. 125. Secure all the facts, and include all the stipulations. 126. Use words expressing the intention of the parties. 127. Be sure the agreement is understood by the parties. 128. Agreements between litigants. 129. Legible agreements— Duplicates. § 123. SMll required in drawing agreements. — The preparation of contracts forms an important and lucrative part of a lawyer's office work. Few busi- ness men feel safe in doing this class of work them- selves, and if they do write their own agreements often subsequently find that the result has been far from satisfactory, and, sometimes, that the few dol- lars then saved have many times over been expended in litigation which could have been avoided if an attorney had been employed in the first instance. It was said that one of the toasts at a lawyers' .dinner was to the man who drew his own will. In these days, the health could more properly be proposed to the one who writes his own agreements ; he is cer- tainly the best friend of the profession. The layman rarely recognizes the degree of skill required to properly prepare a contract of any in- tricacy. No other class of office work draws more largely upon the lawyer's skill and ability; and he (135) 136 ELEMENTARY PRACTICE. § 124 who has the talent to write the words of an agree- ment in all their delicate shades of meaning, clear, yet legal, technical, yet practical, and, above all, expressing the intention of the parties, is an artist of no mean merit. It is not difficult to recall agree- ments of so complicated a nature as to evince, in the highest degree, legal ability, an exceedingly prac- tical mind, and no small literary talent, combined in the lawyer who wrote them. There is no better way to judge of the qualities of an attorney than to thoroughly analyze one of the contracts he has pre- pared ; if it stands the test it can be assumed that it came from the pen of a good lawyer. § 124. The omtliae of a contract. — The various parts of an agreement consist of its date; the names and residences of the parties, naming first the one who is to do the acts provided for in the contract; the subject-matter of what he is to perform, and when and how it is to be done; the consideration coming from the other party; the various mutual covenants, agreements and conditions; and, finally, the signatures of the contracting parties; adding seals, if required, the names of attesting witnesses, and, if it is to be recorded, an acknowledgment be- fore a notary, magistrate or the like. It is wise to carefully study well drawn agreements and acquire, as it might be termed, the swing of the proper con- tracting form. It is an art in which there will be improvement with practice, and one which will prove to be a pleasant part of the lawyer's duties. Noth- ing in his office work should give the attorney more gratification than to be able to lay before bis client a § 125 PREPARING CONTRACTS. 137 complicated and difl&cult agreement satisfactorily pre- pared. § 125. Secure all the facts, and include all fiie stipulations. — Before commencing to draw a contract it is necessary to know in detail all that is desired by the parties; which can be ascertained by requiring from them a statement of all the facts and circum- stances deemed necessary to properly prepare their agreement, and to effectuate their intention, as it may be that their general statements do not cover all that the writing should contain. The point is to include all that the parties intend the agreement should cover. Sometimes they will say that certain things they will then, or afterwards, verbally agree upon. As one of the objects of an agreement is to avoid litigation and future difficulties, it is best, if it can be done, to include all their stipulations in the writing, so that future disputes may be prevented. It must be remembered that parol evidence can not be introduced to alter or vary the terms of a written agreement, unless that which is offered to be shown has been omitted by fraud, accident or mistake, or was an inducement for the execution of the agree- ment, and at that time. § 126. Use words expressing the intention of the parties. — The agreement should be tersely drawn, without shortening it so much as to obscure the meaning; using, so far as possible, the exact words of the parties, with no unnecessary technical terms. Plain and simple words are of greater value than those which are complicated or unusual. If tech- nical terms of trade are to be included, be sure that they are understood by the parties, and that their ex- 138 ELEMENTARY PRACTICE. § 127 act meaning is always susceptible of proof by experts in the trade in which they are used. It is to be re- membered that an agreement will be construed so as to effectuate the intention of the parties, when the intention can be gathered from its language; hence, every contract should be prepared with the thought that it may in time form the basis of legal proceed- ings, and will there be reviewed in the strong light of a judicial construction. It would be most unpleasant to then learn that it had been so unskillf ully drawn that it was found impossible to discover from its language what was the intention of the parties. § 127. Be sure the agreement is understood by the parties. — When an agreement is finished the scrive- ner should make sure that it is understood by the parties, both as to its language and its legal effect. The importance of this lies in securing that warp and woof of every agreement, the intention of the parties, which can only be assured when it is known that the agreement was thoroughly understood by them when it was executed, and that they compre- hended all that it included. To that end the lawyer should be clear and explicit in his explanations, and should not permit the parties to sign the contract until he is sure that it contains that which they de- sire. An agreement is a meeting of the minds of its parties, and, hence, there devolves upon the lawyer the duty of writing for them that which they wish to be their contract, and that alone. § 128. Agreement between litigants. — If an agree- ment is to be drawn between parties to a litigation, touching the matters in controversy, the attorney pre- paring the papers should insist that the other party § 129 PREPARING CONTRACTS. 139 shall be represented by his own counsel, thus aToid- ing subsequent criticism against the one who may have prepared the agreement, as having been drawn in the interest of his client. The signature of the counsel for the other party, in attestation of his cli- ent's execution, would relieve the writer from such an aspersion. § 129. Legible agreements — Duplicates. — It goes without saying that the contract should be legibly drawn, and that it should be executed in duplicate, so that each party may have one. The advent of the type-writer, now found in almost every lawyer's office, provides for both these suggestions ; and, in these modern days, saves the necessity of an expert some- times needed to decipher the handwriting of lawyers of other times, whose written words were often as dif- ficult of translation as are the hieroglyphics of the ancient Egyptian priests. It can be truthfully said that the beginner in the profession who prepares his agreements neatly, with care, in good language, and without delay, will earn his client's good- will as rap- idly as in any other manner, and thus be thought worthy of other professional employment. CHAPTER XIV. CONVEYANCING. § 130. Conveyancing forms part of the beginner's'work. 131 . Difficult conveyancing. 132. An ancient deed. 133. Conveyancing requires accuracy. 134. Execution by attorney-in-fact, seals, etc. § 130. ConTcyancing forms part of the beginner's work. — Conveyancing, that is, drawing deeds, mort- gages, leases, etc., is a class of business which will be among the first to come to the beginner's office. Much that has been said respecting the preparation of agreements is applicable to this subject. Convey- ancing will be found much easier by reason of the fact that blanks, covering almost every required form, can be so readily obtained from the law station- ers. Again, in many of the states, forms of convey- ancing have been so much simplified by statute that it has there ceased to be as great an art as it was in other days, and still is, in a modified degree, in such parts of the country as retain the more ancient forms of the common law. It is requisite, however, that the conveyancer should be skilled in the law of real estate, and familiar with the terms required in the preparation of indentures. § 131. Difficult conveyancing. — However much the forma of conveyancing may have been simplified by (140) § 132 CONVEYANCING. 141 statute, or by practice, there are occasions when a lawyer must summon to his help a careful study of ancient conveyancing, and of the law of real estate-, in order to meet the questions with which he is re- quired to cope. For example, he may be employed to draw a deed containing complicated trusts, or dif- ficult conditions. Here, he may find it necessary to make a thorough study of the law applicable to such a conveyance, and to look up ancient indentures to supply him with the proper forms. Work of this nature requires the exercise of the lawyer's best skill and talent, and may involve the greatest responsi- bility. Again, he may be employed to draw a cor- poration mortgage, possibly one for a railroad com- pany, securing the payment of bonds against its property and franchises, and involving complicated directions to the trustee, and limitations upon its powers and responsibilities. Such work is given to lawyers of proven ability and commands large fees. No member of the bar should consider himself thoroughly skilled in the art of conveyancing until he is able to perform such duties as these. The be- ginner can not expect to be called upon in these classes of professional labor at the outset of his career, but none the less should he strive to so perfect him- self in the art of conveyancing that when he is pro- moted to this higher station he may not be found wanting in ability to perform its duties. §132. An ancient deed. — In the Appendix is given a copy of an ancient deed, prepared more than a century ago, which actually conveyed a title and was duly recorded. It is a curiosity in legal litera- ture, and is not only pleasant reading, but is valua- 142 ELEMENTARY PRACTICE. § 133 ble to the lawyer as it covers almost every form describing the acquisition of title, many of them being of practical use to the conveyancer. Its chain of title is certainly unique, for it commences with the beginning of all things earthly (barring the modern theories of evolution) and continues down to the date of the deed. It starts off with the enfeoff- ment in Adam and Eve by the Creator of "All that certain tract of land, called and known in the plane- tary system by the name of The Earth;" and by descent, through the children of our first parents, to their heirs ; followed by partition among the peo- ples of the world, including an allotment of a por- tion thereof, "Known at present on the general plan thereof as Pennsylvania, to the Six Nations of America," and thence by deed to the Penn Proprie- taries ; followed by various titles, covering all forms by which title can be acquired, down to the grantor in the conveyance. § 133. Conveyancing requires accuracy. — It will be remembered that Dr. Warren in that delightful book, "Ten Thousand a Year," gave the Aubrey estates to the addle-pated Tittlebat Titmouse as the result of the trial of the case of Doe d. Titmouse v. JoUer, because the deed relied on by the defendant contained an erasure in a material part, not noted In the attestation clause. Parenthetically, it might be added that the young lawyer could not beguile his leisure hours in a more entertaining and useful manner than by reading this famous novel, from which he also could gather good lessons in profes- sional ethics, in a negative way, from the inimitable § 134 CONVEYANCING. 143 account of those precious scamps of attorneys, Quirk, Gammon and Snap. § 134. Execution by attorney in fact— Seals, etc. — If the conveyance is to be made by an agent, or attorney in fact, it should be remembered that his authorization should be by as high an act of the principal as if he were making the indenture. Thus, if a married woman is the grantor' the husband should also execute the power of attorney, if the statute requires him to join in her deed, and their acknowledgment must be had in the statutory form. Reference should be made in the indenture to the letter of attorney, and to its date and place of record ; it must be drawn as the deed of the principal by the agent, and not as his own act, and the acknowledg- ment is to be made as the act of the principal. The number of attesting witnesses, and the form of the acknowledgment, must all be in accordance with the statutes of the state where the property is situated. As in the instance of the married woman's letter of attorney, so also of her indenture, if required by statute, as is usually the case, the husband must be joined in the execution and acknowledgment. When required by law, a proper clerk's certificate to the authority and official standing of the officer be- fore whom the acknowledgment is made must accom- pany the deed, and the attention of the grantee should be called to the provisions of the recording acts, and to the necessity for placing his deed of record. CHAPTER XV. SEARCHING TITLES, AND MAKING ABSTRACTS. § 135. Care required and responsibility incurred in searching and abstracting titles. 136. Searches made in three ways. 137. The elements of a recorded title. 138. Continuation of the search of title. 139. Various modes of acquiring title. 140. Adverse conveyances. 141. Mortgages. 142. Judgments. 143. Mechanics' liens. 144. Public liens. 145. Taxes. 146. Attachments. 147. Lis pendens. 148. Decedent's debts. 149. Other encumbrances. 150. Exceptions to a certified abstract of title. § 135. Care required and responsibility incurred in searching and abstracting titles. — Among the vari- ous kinds of office work, and akin to conveyancing, is that of searching titles to real estate, making abstracts thereof, and giving opinions thereon. Pro- fessional services of this sort require care and accu- racy in a marked degree. In these the client abso- lutely depends upon his lawyer, and an error may not only result in serious loss to his client, but may also render the attorney liable in an action for negli- gence. If for no other reason than to save himself (144) § 136 BEAECHING TITLES, MAKING ABSTRACTS. 145 from liability the lawyer should here exercise a high degree of care and caution. § 136. Searches made in three ways. — There are three modes by which a title may be searched. 1. Official searches, made by clerks of courts, re- corders of deeds and mortgages, tax officers, etc. Probably everywhere, upon payment or tender of their fees, such persons are compelled to furnish, over their official signatures and seals, certificates of records, titles, liens, etc., for the accuracy whereof they are legally responsible. While these searches are valuable, and are often used by lawyers as part of their abstracts, it must be remembered that the responsibility of such officials does not usually extend beyond the ordinary limitations of actions, and that an action against them for a false or erroneous cer- tificate is barred after six years from its date.' 2. To provide against this, and to secure a perma- nent certificate, there have sprung up all over the country, within the past few years, certain guaran- tee or real-estate title insurance companies, whose business it is to furnish such searches ; the certifi- cates taking the form of policies of title insurance, permanent in their nature and trustworthy. Such companies have been able to compete for this busi- ness, making money for themselves, and, at the same time, providing their patrons with certificates which have thus far proven entirely satisfactory. 3. The scope of this chapter has to do with searches and abstracts made by the lawyer, followed by his certificate and opinion thereon. While he may also » Owen V. Western Savings Fund, 97 Pa. St. Rep. 47. 10 146 ELEMENTAEY PEACTICE. § 137 use the official searches, or the title companies' poli- cies — and the cautious lawyer would prefer to be thus relieved from personal responsibility — the intention is to here describe his work of this nature, were he to do it all himself. Writing for all parts of the country, the author has found it impossible to cover every question which may be raised in every state ; but it has been his purpose, so far as he could do so, to give in a general way the usual requirements for the search of a real-estate title. To that which is here given the reader can add anything else made necessary by the statutes or practice of his own state. § 137. The elements of a recorded title. — Gen- erally speaking, the work of a search can be divided into two classes : the title to the land, and the liens or encumbrances against it. A consideration of the former is the object of this and the three succeeding sections, the nine sections following being devoted to liens and encumbrances. In making a search and giving the chain of title, it is usual, and generally more convenient, to commence with the owner at the time of the investigation, and to trace his title back through the successive owners of the land. As a caption to the abstract, a description of the land to be searched is first given; then begin with the last grantee and find his deed of record, and examine the following items, making full notes : 1. The name of the grantor. As he will be the grantee in the next preceding deed it is important to know that his name exactly corresponds with the one given in that conveyance. In these days of many similar names it is of great importance to know that § 137 SEARCHING TITLES, MAKING ABSTRACTS. 147 the correct person has been secured. It is impossi- ble where the name is common (e. g., John Smith) to be sure of this, but some assistance can be had from his residence, given in the deed, and, possibly, from outside sources. Again, it must be known that the grantor was unmarried, if he alone sign. Here, also, in the absence of proof aKwnde, difficulties may arise, to be guarded against so far as is possible. 2. The date of the deed and its acknowledgment. Delivery being essential to give it effect, it will be presumed to have been delivered as of its date, ex- cepting that if the acknowledgment be on another day that will control, in the absence of proof to the contrary, 3. The nature of the deed.. Whether an indent- ure, deed poll, quit-claim, release, etc. 4. The consideration. Noting particularly if it be other than a money consideration, e. g., love and affection, exchange of properties, covenants to be performed by the grantee, etc. 5. The description of the land conveyed. This should be carefully compared with the description of the property being searched as given in the caption. If the latter be but a part of that conveyed by the deed the services of a surveyor may be required to determine the exact location. The recitals in the deed may furnish a clue to the identity of the land, and sometimes form almost the only means of identi- fication. 6. The nature and extent of the grant. Here, it must be observed whether the deed conveys an estate in fee-simple, or for life, or for years, etc. For the first it must contain the words of inheritance, "his 148 ELEMENTARY PRACTICE. § 137 heirs and assigns forever." Also, all reservations, exceptions, restrictions, trusts, and conditions should be carefully noted and abstracted. The rights of the grantee in any adjoining street or road, or right of way over adjacent lands, should also be noticed and briefed. 7. The covenants of title or warranty. Whether general and against the world, or special and limited to the grantor and his heirs. 8. The signatures to the deed. Noting if it be signed by all the grantors, and joined by their wives, if they are married. Also, if the deed is made by an attorney-in-fact, trustee, executor, etc., that it is signed in such representative capacity, and that the full power to execute it is set forth in the deed itself, and if not, full proof of such power is to be dis- covered. This can be searched for, in the case of an agent's deed, in the record of powers of attorney; of an executor, in the will of the testator dying, seized of the land; of an administrator, guardian, assignee, or executor without testamentary power, in an order of the proper court conferring that authority; and of a trustee, in the will or deed granting him that power. It is essential that the person executing a deed as the representative of another shall have full power therefor, and to be sure of this a careful exam- ination of the authority must be had and a compari- son with the law regulating the right to make the conveyance. The power under which such a deed is made should be carefully noted in the abstract. 9. The witnesses and seals. Observing that the former are of the number, and the latter in the form, required by law. § 138 SEARCHING TITLES, MAKING ABSTEACTS. 149 10. The acknowledgment. This should be in the statutory form and must contain all its requisites; thus, that it has been taken by a proper officer, and, when so required by law, that his official character is certified by the proper authority, usually the clerk of the court having official knowledge of his charac- ter. 11. The record. Here should be noted, its vol- ume and page. § 138. Contmuation of the search of title. — ^The investigation of the title of the last grantee completed, and an assurance that thus far the title is good, the abstractor proceeds to examine the conveyance to the grantor named in the deed first searched, observing the same matters, and noting them in his brief. In like manner he then carries back the search for a period of fifty years or more ; continuing it, if possi- ble, to the grant from the state or national govern- ment. He will find it of value to thoroughly learn the system of recording and indexing adopted in the offices where he is to search before he commences his abstract work, as his labors will thereby be much lightened. In time he will accumulate in his office briefs of title, or former notes, of material assistance in his later searches ; for after a few late deeds he may run into a title he has already gone over, and may thus save the necessity of duplicating his work. § 139. Various modes of acquiring title. — Not always will the land records contain the complete chain of title, and the search there may come to an abrupt end. This, because some of the deeds may not have been recorded, in which case they must be 150 ELEMENTARY PRACTICE. § 139 looked up elsewhere ; or for the reason that a recorded deed may not be the means whereby a grantor holds the land. It is to be remembered that title to real estate can be evidenced in more ways than by deed recorded in the land ofl&ces ; thus : 1. A grant from the state or national government may not, necessarily, be entered among the records required for ordinary deeds, and the searches for such muniments of title may be needed to be had in other offices. 2. Title by descent may be very diflBcult to search, as any record of administration of the ancestor's estate may be wanting, and still the heirs may hold the property as firmly as if by deed recorded in their names. For proof of such a title, in the absence of any record in the probate or surrogate's ofiices, or in the orphans' court (as they are variously called), resort may be required to be had to evidence in pais to show the descent; of necessity, a very dangerous method of establishing a title. 3. When the title is by will, the language of the testament must be carefully noted to ascertain the terms of the devise ; whether it be in fee-simple or for life, or the like, or absolute, or upon uses and trusts, or subject to conditions. So, also, must it be certain that the will appears to be correct on its face, and that it has been properly probated. It must also be known if the will ha^ been declared void ; a fact which would probably not appear upon the rec- ord of its probate, and would require a search among the records of the proper court. Again, in all cases of title by will or descent, it must be ascertained if § 140 SEARCHING TITLES, MAKING ABSTRACTS. 151 the land has been subsequently sold in payment of the debts of the ancestor, or is still subject thereto ; again requiring search among other records, and, possibly, evidence in pais. 4. Title by partition proceedings may have come through an action in court, without any record thereof in the land office ; although this could only . happen when the party being searched was formerly one of the tenants in common, either by deed, de- scent, or will, and now owns all the land. To find such a title reference may be required to the records of those courts ; and in such searches assistance may be had from references and recitals in some of the later deeds. 5. Proof of title by adverse possession, like that of title by descent, must be determined by facts. Such evidence should be carefully compared with the common law and statutory requirements for adverse possession, and if any of their essentials are found wanting the title falls. One of the most important of these is that title can not be acquired in this way against any persons under disabilities, such as in- fants or lunatics. 6. There are two other methods by which title can be acquired, and, in some of the states, without any record in the usual recording offices. These are ju- dicial and tax sales ; the only required record thereof, in such states, being in the office of the clerk of the court or the collector of taxes. § 140. Adverse conveyances. — The chain of title found to be complete in the various grantees down to the owner then being searched, to perfect the abstract, and before searching for encumbrances, it is neces- 152 ELEMENTARY PRACTICE. § 141 sary to be sure that no transfers of the land have been made by any of the grantors outside of those contained in the brief, such transfers being called adverse conveyances. This can only be ascertained by searching for other conveyances of the same land out of the several grantors, from a period before to a date subsequent to the record of the deeds to their grantees; and, if the statutes permit any length of time for recording, then to a date posterior to such limitations, the result of such searches being shown in the brief of title. § 141. Mortgages. — ^The chain of title found to be perfect, and without adverse conveyances, a search for encumbrances now follows. These are to be examined against all the owners of the land noted in the brief, within the time limited by law for their continuance as liens. First among the encumbrances to be looked for are mortgages ; usually to be found in the same oflQce where the deeds are recorded. This search should be commenced from the day before the date of the con- veyance to the grantee, to a date covering the time within which any statute permits a mortgage to be entered to become a lien by being recorded. For ex- ample, in some of the states preference is given to a mortgage to secure a balance of purchase-money, which may be recorded within a time limited by such statutes, and during that period is a lien, although not entered for record. Where, as is generally the case, the lien of a mortgage is from its record, that should be the date noted in the brief, rather than that of the mortgage itself, excepting in the special cases § 142 SEARCHING TITLES, MAKING ABSTRACTS. 153 regulated by statute, one of those exceptions, and, possibly, the only one, being that above given. § 142. Judgments — In some of the states, judg- ments are liens only as against prior acquired lands, and not against those subsequently purchased, unless the judgment has been revived since such later convey- ances. In other states, a judgment is a lien against after-acquired property, without continuation or re- vival. Again, in some states, judgments entered against an owner of land do not remain a lien thereon, as against subsequent purchasers, unless re- vived within a certain number of years against such purchasers; there called ferreienanfe. So, again, the period of the duration of the lien of a judgment is variously limited by statute, even as against the judgment debtor himself. All this, as well as other questions concerning judgments, show that a thor- ough knowledge of the statutes and decisions of his state regulating liens is essential to the lawyer before he can make a proper search and abstract. Judg- ment searches should be made in all courts of record where the entry of a judgment would bind the land, including the United States courts in all districts of the state. § 143. Mechanics' liens. — The right to file me- chanics' liens is given only by statute, and their ex- tent, and the time within which they can be entered, are regulated thereby. In some states, the propertj- may still be subject to these liens, although not en- tered of record; such are cases where they can be filed within a determined period from the date of the last item furnished the building, and relate back to 154 ELEMENTARY PRACTICE. § 144 its commencement; in such instances, parol evidence may be necessary to complete the search. §144. Public liens. — Public liens are those cre- ated by a municipality; such as for pavements, sew- ers, water, gas, etc., generally, taking precedence over all other encumbrances. Their validity re- quires that their assessment should be made in ac- cordance with law, and that they are properly entered of record. They may not be entered in the ofiSces where other liens are to be found, and searches may be required in the municipal offices, or wherever the law may provide that they are to be recorded. § 145. Taxes. — Taxes must always be searched for, and, like public liens, depend upon assessment and record entry. In the absence of an agreement between the parties, the grantor is liable for all taxes assessed against the property before the date of his sale ; the date of the assessment being the time of the commencement of their lien. So, for the current year, the purchaser would be liable for the paynaent of all taxes assessed after his purchase, in the ab- sence of a statiite or an express agreement to the contrary. § 146. Attachmeats. — Attachments usually bind the land against wliich they are issued, and must also be searched for. The most common form is that of a foreign attachment, issued against a non- resident debtor of the state where his land is situated. Generally, attachments are entered of record in the same courts where ordinary judgments are found, and, usually, are indexed with them. As an attach- ment is a proceeding in rem,, and only the property attached is bound, a description thereof must be in- § 147 SEARCHING TITLES, MAKING ABSTRACTS. 155 eluded in the record of that proceeding, which will be void unless it follows the statutory requirements. § 147. Lis pendens. — By the term lis pendens it is intended to include actions of ejectment ; proceed- ings in equity to enforce trusts ; suits for specific performance of agreements concerning lands ; pro- cess praying a decree for the payment of money charged on land; bills to quiet title, etc. All of these are in the nature of encumbrances, and must be included in the searches. § 148. Decedents' debts. — By statute, in most of the states, the lien of the debts of a decedent is con- tinued against his real estate for a certain number of years after his death, and, during that period, will bind his lands without entry of record. The evi- dence of such debts may need to be discovered from other sources than the record, but title coming from the heirs, or legal representatives, of a decedent, can not be certifiM to be clear of encumbrances until it is known that such liens do not exist. § 149. Other encumbrances. — There may be still further searches to be made than those to which we have referred, but that can be determined by the statutory law of the state where the land is situated. The attempt has been made, in a general way, to cover the chief subjects of a search for encumbrances upon real estate. It is one of the most difficult parts of the work of examining a title, and the law- yer is safer if he depend upon official searches against liens, rather than to himself run the risk of personal liability in certifying them. § 150. Exceptions to a certified abstract of title. — With all the care of the abstractor — and our but 156 ELEMENTARY PRACTICE. § 150 cursory review of his labors points out many of the difficulties with which he meets — he may still be un- able to give a perfect abstract of title and certificate of encumbrances. At least two matters can not be absolutely guarded against, excepting with more labor than it is possible to give to any search. First. The indexes may have omitted a convey- ance, mortgage, judgment, etc., affecting the prop- erty. Searches are, necessarily, made from the in- dexes, because in most public offices it would be a task too difficult to perform to search all of the rec- ords themselves. Indexes are usually accurate, but that can not always be assured. Second. The grantors or grantees, although bear- ing precisely the same name, may not be the identi- cal persons named in the conveyances noted in the abstract, or included in the lien search. Again, names when spoken may be very similar to the ear, but quite different in the manner in which they are written. Thus, the German name Kuntz has easily been re- duced to Koons, and still further anglicized into Coons. Many other names will suggest themselves to the reader as coming within this rule of idem sonans, all of which will illustrate the point we make, which is that no search would be perfect unless it in- cluded all the names of the same sound, because, as we have said, foreign names not always being spelled alike when brought to American shores, careless or ignorant clerks may have made serious mistakes in including them in the indexes of their records. That such a search would be next to impossible is evi- dent. If, therefore, a certificate is required to an abstract § 150 SEARCHING TITLES, MAKING ABSTRACTS. 157 of title, two things should always be excepted : the accuracy of the indexes, and the identity of the grant- ors and grantees named in the conveyances. When the abstract is finished and ready for deliv- ery to the client it should be dated, and show for whom it is made. The notes of the searches should be carefully preserved, as they will often be found very useful in making subsequent abstracts, which may go over a part of the same ground. CHAPTER XVI. SETTLING ESTATES OF DECEDENTS AND INSOLVENTS. §151. Settling estates. 152. Decedents' estates. 153. Insolvent's estates. 154. Trustees, guardians, etc. § 151. Settling estates. — While the labor required in winding up the estates of decedents and insolvents is not necessarily professional work, the assistance of the lawyer is usually required. Sometimes the attorney himself is the executor or administrator of the decedent's estate, or is the assignee of the in- solvent; however, it is not proposed to discuss any of the duties which may there be required of him, as not forming a part of his professional services, but, rather, to make some reference to the legal as- sistance rendered clients who are in charge of the settlement of estates. This is a very lucrative part of the lawyer's office work, and also has the advant- age of readily bringing him his fees, as he is assured their payment out of the funds in his client's hands. § 152. Decedents' estates. — An outline of profes- sional services in the estate of a decedent would in- clude the proper probate of the will of a testator, and the grant of letters testamentary to his executors, or of letters of administration on the estate of an intes- tate. Administration is usually granted to the fol- (158) § 152 SETTLING ESTATES. 159 lowing persons, and in this order : the widow, a son, a daughter, One interested in the estate as an heir, a creditor, or a fit person. The probate judge, the register of wills, the surrogate, or whoever may have this official duty, has discretionary power in grant- ing administration, generally, however, within the lines and in the order named. If the widow is com- petent, she is first entitled, and no other can be appointed without her renunciation first had. As between children, heirs and creditors the discretion of the officer in granting letters is usually final. Failing all these he may select a proper person to administer the decedent's personal estate. Letters granted, public notice thereof should be given, fol- lowed by an inventory and appraisement of the estate, filed with such a bond as is required by law. The ad- ministrator must remember that he has no control over the real estate of the decedent without a special order of court, nor has an executor, in the absence of power in the will. The services of the lawyer are, in the main, re- quired in advising and directing those in charge of the estate. The statute law regulating the settlement and distribution of estates is usually well defined, and there should be little difficulty in guiding aright the executor or administrator. The first duty of the counsel is to see to it that his client does not render himself personally responsible. To do this an order of court should be obtained in all doubtful cases, if it can be had, or. the written consent of all par- ties interested in the estate. The property of the decedent, coming into the hands of the executor or administrator, being ready for distribution, it is his 160 ELEMENTARY PRACTICE. § 153 duty to file an account in the proper office. This ac- count should either be drawn by the lawyer, or passed upon by him before its completion. It should be a complete record of the administration of the estate, showing the receipt and disbursement of all moneys, and the balance in the hands of the ac- countant. The account being confirmed by the proper court, the balance distributed, and the duties of the executor or administrator finished, it remains for the attorney to have him finally discharged from his office and his responsibility thereunder ended. § 153. InsolTents' estates. — The duties of the law- yer do not materially differ in advising the repre- sentatives of the estates of insolvents from those connected with the administration of decedents' es- tates. Frequently he is also the attorney for the insolvent himself, because his client would not likely select an assignee inimicable to himself, nor one who would not employ his own attorney. Therefore, his legal services usually begin with the preparation of the deed of assignment, followed by its entry of record in the proper office, public notice, inventory, and bond. Like the case of the executor or admin- istrator, the assignee needs to be guided by his law- yer, and to be prevented from incurring personal responsibility. His accounts should be properly prepared, and, in every respect, the requirements of the insolvent laws strictly followed. The chief difference between an assignee and a re- ceiver is that the former is chosen by and represents the assignor, although in trust for his creditors, while the latter is appointed by and is an officer of the court. Receivers are usually appointed to operate § 154 SETTLING ESTATES. 161 the business or to sell out and dispose of the prop- erty of insolvent corporations. The counsel for the receiver of a large corporation has a very responsible professional employment, but one usually very profit- able. Such positions are not likely to come to the beginner at the bar, but he may have connection with such matters as junior counsel, and, in time, himself have such an excellent client. At all events, he must know that such duties are included within the office work of the lawyer, and are by no means the least desirable. § 154. Trustees, guardians, etc. — It is unnecessary to make any reference to professional services ren- dered to trustees, guardians, etc., beyond the state- ment that sound professional advice is required, and good business judgment is needed in safely guiding such clients. It is well to advise a guardian, upon the termination of his ward's minority, to obtain his approval of all that has been done in preserving his estate, for the purpose of saving future criticism. Ethically, the guardian of a minor occupies a much more responsible position than does any other trus- tee. He acts for one who is incapable of managing his own affairs, and needs not only professional care, but, also, that interest in his affairs which should be given by one who endeavors to do more than his duty, indeed, as much as, if not more, than he would exer- cise in the care of his own business. 11 CHAPTER XVII. FORMATION AND PROFESSIONAL CAKE OF CORPORA- TIONS. § 155. Corporation clients. 156. Preparing corporation charters, by-laws, etc. 157. Professional care of a corporation. § 155. Corporation clients. — In these modern days of combinations and organizations of capital a corporation clientage forms no small part of the suc- cessful lawyer's office work. It is not only directly valuable, but has the indirect advantage of usually drawing the private business of its officers and em- ployes, as well as giving the lawyer a local reputation of value. The young lawyer can not expect to be favored with such a clientage at the outset, but he will be wise if he give some attention to corporation law, and, so far as he can, familiarize himself with its forms and practice, so that he may be prepared to care for that class of business when it comes to him. § 156. Preparing corporation charters, by-laws, etc. — Preparing the charter of a corporation is not, as a rule, a matter of much difficulty, as in nearly all the states their incorporation has been much simplified and facilitated by general laws. Proba- bly the most important portion, and that requiring (162) § 157 CORPOEATIONS. 163 the use of careful and precise language, is in nam- ing and describing its corporate powers. There are charters which, necessarily, must require the exer- cise of the lawyer's highest skill and ability; but in all, general or special, the labor is of a class which usually receives a satisfactory compensation. It is worthy of suggestion that when the perfected char- ter is turned over to the new corporation, it should be accompanied by a draft of the by-laws for the ap- proval of the stockholders. There are other prelim- inary matters which might properly receive the at- tention of the attorney, such as the proper organiza- tion of the company, their first minutes, etc., in which his services will be appreciated. Very fre- quently the stockholders of a new corporation come together without any knowledge of the proper mode of organization. If the attorney who drew their charter is then able to guide them in this he is likely to be selected as their permanent solicitor. There are instruments connected with the legal business of a corporation for which their preparation will demand the exercise of superior skill. For ex- ample, the mortgage of a corporation securing an issue of its bonds will require the best legal talent of the lawyer, and a perfection in that line will necessi- tate a thorough knowledge of the forms needed to cover all the questions properly to be included in such a mortgage. § 157. Professional care of a corporation. — The professional care of the corporations of any locality can usually be found intrusted to the leaders of its bar. The legal affairs of a corporation are often in- tricate and difficult, and their successful conduct 164 ELEMENTARY PRACTICE. § 157 will require bot;li legal learning and, as well, tact and good judgment. In the the trial of cases their solicitor must remember that prejudices against such clients are likely to be raised with the jury, and that at the hands of the "ancient twelve " a cor- poration is not always sure of equal and exact justice. Why itis that a few men associated together in alegiti- mate business under the form of a corporation should not receive the same consideration as would others do- ing a similar business as copartners, is an inquiry which can be answered in several ways, but the plain fact remains that the distinction does exist, and is often unjustly applied. It is in the management of such cases, particularly in keeping them away from the opportunity of a jury to act unjustly, that the solicitor of a corporation needs to exercise his skill and tact. CHAPTER XVIII. COLLECTION OF CLAIMS. § 168. The beginner's business usually that of collecting claims. 159. Mercantile collections. 160. A thorough system needed in commercial collections. 161. Collection and mercantile agencies. 162. Published lists of attorneys. 163. Rates for collections and division of fees. 164. Suggestions for managing collections. § 158. The Ibeginner's business usually that of col- lecting claims. — Among the first things the beginner at the bar is called upon to do is the collection of claims. If his duties in that line are faithfully and quickly performed he may expect further professional employment, and, perhaps, secure it more rapidly than he could through any other business he may be called upon to transact at the outset of his practice. His friends will be likely to entrust him with their collections in order to show him a kindness, and, at the same time, to test his professional qualities. If he show promptness and activity in the care of such matters, he can be reasonably sure of other employ- ment, and may win his friends for permanent and regular clients. Again, if he is energetic and trust- worthy in such affairs these clients are sure to recom- mend him to others, and thus materially aid him in his progress. Much of the success of the lawyer de- (165) 166 ELEMENTARY PRACTICE. § 159 pends upon the start he makes in the law. He ia sure to have friends who are willing and anxious to aid and advertise him, but he must give them ma- terial for their praise by diligently working at the smaller concerns with which he is entrusted. Every successful lawyer, in looking back over his early days, can point to something during his novitiate which gave him a reputation, and started the client- age he afterward secured. That something is, prob- ably, the prompt and diligent attention he gave to some minor business then entrusted to his care by his friends. § 159. Mercantile collections. — By the term col- lections is not meant those made by personal solici- tation, properly belonging to collectors of small debts and bills, but, rather, to those managed from the office, like claims of wholesale dealers against their retail customers. . In many instances such em- ployment may result in litigation, and from it may grow causes of importance. Many of the claims re- ceived for collection are defended by the debtor, and thus contested actions will arise. The client, too, who finds that his mercantile collections receive proper attention from his lawyer, beginner though he may be, will probably give into his care those cases which will require a legal contest. Again, a collection clientage is always lucrative, and is one of the sources providing a steady stream of fees, which, though comparatively small in individual amount, furnish, in the aggregate, a satisfactory compensa- tion. It assists in doing away with the latter part of that " feast or famine " which sometimes describes the lawyer's income. Where his fees come butocca- § 160 COLLECTION OF CLAIMS. 167 sionally, and then in larger amounts, he will appre- ciate the opportunity to secure business which will also give him a more continuous and steady rev- enue. § 160. A thorough system needed in commercial collections. — Many lawyers, whose professional busi- ness is very large in all departments of practice, do not hesitate to accept a collection business, and, by tha adoption of a thorough system and careful at- tention to its demands, thereby secure no small re- turns. A lawyer in large and general practice may not be able to give his personal attention to the de- tails of his collection business, but he can secure such clerical assistance as may be needed for that purpose, taking into his own charge the conduct of the litigation growing out of that department of his practice. He may have begun with the personal care of the collections of his oflBce, and, by the aid of a perfect office system, have retained that client- age, even though the details are in the hands of his clerks. An ideal law office is one so organized and systematized that all classes of law business, from the greatest of contested cases to the smallest collec- tions, will receive perfect and prompt care and atten- tion. It is not a branch of professional business to be despised at any stage of his career ; while a prompt and careful attention to its demands will assure the lawyer at the beginning of his practice, as well as throughout his professional career, clients worth hav- ing, and, with them, a good and steady income. § 161. Collection and mercantile agencies. — Im these days, mercantile collections are very largely in the hands of large commercial agencies, who devote 168 ELEMENTARY PRACTICE. § 161 their attention exclusively to this class of work, and seek the services of trustworthy and able lawyers in all parts of the country. Certain lines of trade, also, have agencies who take charge of collections for their members, and for that purpose have representatives at every bar. Many of these agencies choose their correspondents with care, and are able to send them business of value. They have established rates for collections, of which they receive a share, usually one third. They are, generally, well organized and equipped, and furnish valuable and important em- ployment to the attorney. When a correspondent has proven to be prompt and reliable he can be assured of their clientage, and will secure profes- sional employment certain to remain in his office.' ' Among the important mercantile and collection agencies in the chief cities, many of whom have offices and branches in many parts of the country, are these : iVew York — R. G. Dun & Co. ; North American Mercantile Agency ; Attorneys' and Agencies' Association ; Gilbert Elliott Law Co.; Snow, Church & Co.; United States Law Association; Equitable Mercantile Agency ; J. S. Clayton Law and Collection Agency ; Stationers' Board of Trade ; Hardware Board of Trade ; Jewelers' Board of Trade; National Furniture Association. Chicago — R.G. Dun & Co. ; Wilbur Mercantile Agency ; Tappan, McKillop &Co.; Martindale Mercantile Agency; Bond's Com- mercial Agency; Mercantile Law Association; Lumbermen's Credit Association ; American Shoe and Leather Trade Associa- tion ; Jewelers' Association ; Furniture Manufacturers' Exchange. Philadelphia — R. G. Dun & Co.; John & C. W. Sparhawk; Wagner & Tschudy; Sharp & Alleman; Brock's Commercial Agency ; Guarantee Collection and Law Co. ; A. J. & L. J. Bam- berger. Boston — Edward Russell & Co. ; Farnswoi'th & Conant ; Quimby & Nesbit; Mercantile Law Co.; Reed's Collection and Mercantile Agencj' ; United States Collecting Co. ; National Shoe and Leather Exchange. § 1 62 COLLECTION OF CLAIMS. 169 § 162. Published lists of attorneys. — The lawyer is deluged by applications to insert his name — of course, at some expense — in a great number of lists of attorneys. While it is not considered unprofes- sional to have his name thus inserted, it is to be remembered that a great majority of these lists are prepared only for the purpose of obtaining the charges paid their publishers by the attorneys, and do not bring sufficient legal business to return the cost of the subscription to the publication. There are a few, however, which the lawyer will be wise to secure, as they include the names and addresses of many prominent lawyers in various parts of the country, and are useful in sending business to places where the subscriber does not have a correspondent. In addition, these books contain a synopsis of the commercial laws of the several states, terms of court, etc., and are useful for such information.' § 163. Kates for collections, and division of fees. It is universally customary to make legal collections, where there is no contest or litigation, at established rates. The collection agencies usually name their St. Louis — R. G. Dan & Co. ; Ten Brock Agency ; Commercial Lawyers' Association. Baltimore — R. G. Dun & Co. ; Shriver, Bartlett & Co. ; Ameri- can Mercantile Law Co. Sail Francisco — R. G. Dun & Co. ; Emmons & Emmons. ' Among the entirely reputable lists, and containing the names of lawyers of the highest standing, are the following : Hubbell's Legal Directory, Hubbell Publishing Co., 309 Broad- way, New York; Story's Legal Digest, Mutual Publishing Co., 120 Broadway, New York ; Lawyer and Credit Man., 178 Fulton St., New York; Attorneys' and Agencies' Association, 206 Broad- way, New York; Shai'p & AUeman's Directory, 603 Chestnut St., Philadelphia. 170 ELEMENTARY PRACTICE. § 164 terms when sending claims to their correspondents, as also their expected share of the fees. In the ab- sence of special terms, and as a hint to the beginner when inquired of by his client, this schedule is sug- gested as fair and customary. On the first $200 or less, 10 per cent. On the excess of $200, and not exceeding $1,000, 5 per cent. On the excess of $1,000, and not exceeding $5,000, 3 per cent. On the excess of $5,000, 2 per cent. No fee to be less than $3. One-third these fees to the attorney send- ing the claim. These rates are exclusive of costs, disbursements and expenses, and do not relate to contested cases. § 164. Suggestions for managing collections. — The faithful and successful performance of this de- partment of the lawyer's practice requires tact, good judgment, prompt and careful attention, and the immediate remittance of all moneys collected. The slothful lawyer, and, particularly, the one who is dilatory in paying over his client's money, can not expect to secure any business in this direction, or, for that matter, in any other branch of his profession. Addressing the novitiate on this subject, this could be said to him. When you receive a collection at once acknowledge its receipt to the client, attorney or agency from whence it came, stating the prospects of success, and that the matter will have your prompt and thorough attention ; adding, if in your opinion immediate steps are necessary to secure the money, a statement of the probable amount of costs required, with a request for its remittance, accompanied by such prima facie proof as is necessary to obtain judg- ment by default. As soon as this is done notify the § 164 COLLECTION OF CLAIMS. . 171 debtor that the claim is in your hands for collection, and that prompt payment to you will be necessary to save costs of suit. Keep after the debtor until you are satisfied it can not be secured, or collected, when it should be at once returned to the party from whom you have received it, stating that it is uncollectible by law or persuasion. In the terse language of the motto of a western commercial agency: "Make things happen lively." Keep your client, or corre- spondent, fully advised of all you do in the case, and when you have obtained the money send it to him by the first mail. Under no circumstances, without your correspondent's consent, should you have any communication with his client ; you repre- sent the client only for another, and both courtesy and professional duty require you to deal with the correspondent alone. In another place we have dis- cussed the system of an office, including dockets, the proper mode of filing papers, etc., giving suggestions facilitating the management of collections.' Chapter IX, §§96-100. PART III. PREPARATION OF CAUSES AND PROCEDURE CHAPTER XIX. THE ADVOCATE, AND PREPARATION OF HIS OASES. § 165. Prominence of the trial lawyer. 166. Thorough preparation of a cause is essential. 167. Value of early preparation. 168. Division of the preparation into the facts and the law of the case. § 165. Prominence of the trial lawyer. — While it is true, as we have before said, that the practition- er's income may be more largely derived from his office work, yet, it is equally certain that he acquires fame more rapidly, and secures professional ad- vancement as certainly through success in the courts, where he is more prominently brought before the public, than from the less conspicuous course of Jiis office duties. A knowledge of the characteristics of the members of every bar will show some who excel in the performance of the former class, while others are more successful in the trial of causes; a division in the profession brought about by education, apti- tude for their chosen fields, or, possibly, by fortuitous circumstances; but the really great and successful lawyer is the one who excels in both these depart- (173) 174 ELEMENTARY PRACTICE. § 166 ments of practice, and is as well fitted to accomplish the business of his office as he is to try his client's causes. § 166. Thorough preparation of a cause is essen- tial. — While the desired end of an action at law is a verdict for the client, it must be remembered that the chief means to that end lie in the thorough preparation of a case. A cause well prepared for trial is more sure of ultimate success than one, of perhaps greater strength in law, or fact, not so thor- oughly understood by counsel, or made ready for ex- position to the court and jury. It is, therefore, all- important that the advocate should have mastered his case in every detail before bringing it to trial, and that his thorough knowledge of it should extend to every question of law to be raised and of fact to be proven. It is true, without exception, that no ■ lawyer can become eminent in his profession without great labor. His prominence depends upon his suc- cess, and that success can only be secured as the re- ward of unceasing toil. Nowhere is labor more de- manded than in the preparation of a case. No stone should be left unturned, no root permitted to remain undisturbed, ho portion of the earth unsifted, until the entire field of the cause has been brought to a state of cultivation so high that its successful harvest is assured. If so unfortunate as to meet with defeat, the lawyer should feel sure that it was not caused by his lack of preparation or want of his mastery of the case. § 167. Value of early preparation. — It is important that the advocate should prepare a case at the time of its inception, and as soon as he is retained ; then it § 167 THE ADVOCATE. 175 is fresh in the minds of the client and of his wit- nesses, as well as of himself, and he is better able to master the situation than when the case has become stale, and, possibly, some of its salient points may have been forgotten. Thus he will always be ready for trial, and more readily enabled to understand and cope with any questions which may arise before it is called for hearing. The pleadings of a cause can not be properly drawn without a previous preparation of the facts and law applicable to the case, while any- thing arising before trial, either in the way of the record, or an argument upon any of its questions, can best be disposed of after a thorough knowledge of the whole case. Again, the advocate is always ready against any accident which may occur to pre- vent a preparation of the cause at any later stage of the proceedings. It is admitted that it is more irksome to prepare a* case at the outset of the employment than when aided by the spur of necessity given by the near ad- vent of the trial ; yet, none the less should it have this timely attention. If for no other reason, it is important that the case should be mastered before the suit is commenced, or the client advised to resist an- other's action, in order that he may refrain from lit- igation in which he is not reasonably sure of success. There are lawyers who bring actions and advise their clients to defend without preparing their cases at the outset, deferring that work, through sloth or negli- gence, until the eve of trial ; but it is certain that such lawyers are not the successful practitioners at the bar ; while, on the contrary, those who are early 176 ELEMENTARY PRACTICE. § 168 and always prepared, will rapidly acquire foremost places in their profession. This early preparation should be supplemented by a thorough revision before trial, going over the work and carefully revising and correcting the briefs of law and fact, interviewing the witnesses, and requir- ing them to refresh their memories on the subjects in which they are to be examined, and adding to the list of authorities on the brief all the latest decis- ions. § 168. Eivision of the preparatioi^4nto the facts and the law of the case. — As to their manner of trial, causes resolve themselves int6 two classes : those to be tried before juries, and those to be argued before the court alone, or before referees, masters, auditors, etc.; but it is not necessary to observe that distinc- tion in a discussion of the proper mode of prepara- tion, as all that is said of the former will equally cover the latter class. The two subjects into which the preparation of a cause properly fall are those of the facts to be proven, and the law applicable to the case. That preparation, together with some consid- eration of the preliminaries of procedure and pro- cess, such as choosing the remedy, and the forum, bringing the action, pleading, precautionary meas- ures, preliminary steps, etc., will form the subjects of this part of our work. CHAPTER XX. PEEPAEING THE EVIDENCE. § 169. Know all the facts of the case. 170. Examination of the client. 171. Value of an early examination of the witnesses. 172. The examination of the witnesses. 173. Secure facts, rather than inferences. 174. Cautioning witnesses. 175. Training witnesses. 176. Training the witnesses for cross-examination. 177. Witnesses must not be influenced. 178. Honest witnesses are the best. 179. Witnesses' characteristics and temperaments must be studied. 180. Clients' and witnesses' general reputation and character. 181. Statements of witnesses usually stronger than their testimony at trial. 182. Documentary proof. 183. Construing writings. 184. Maps, plans, etc. 185. Digesting the evidence — Ascertaining the strong points. 186. Arranging the evidence. 187. The probabilities of facts. 188. The brief of the facts. 189. Chitty's rules for preparing the brief of facts. § 169. Know all the facts of the case. — The bones and sinews of every case are its facts, and the first step is to master them in every detail. They must be studied in their depth and breadth, and in the re- lation which they bear to each other. Often, that 12 (177) 178 ELEIIENTARY PRACTICE. § 169 which at first sight may appear to be trivial and of but little moment may be found at trial to be of con- trolling importance. Little matters often control great things, and, on reviewing a case after trial, it will frequently be found that it has turned upon some fact which had not at first been considered of much importance. The effect of the evidence is that which is to be secured, and one must remember that the jury will often draw their inferences from facts which are not prominently brought out, or which counsel may have overlooked ; hence, the skillful advocate will bring to their attention some minor de- tail from which he can show the strength of the case. Of course, the salient points of the cause must be thoroughly in hand ; nevertheless, side lights or small details are frequently of controlling infiuence. The chief object of an investigation of the facts is to secure those which rule the case, and they are often gained more by inference than by direct testimony. From a number of particulars inferences are gained ; those particulars must, therefore, be mastered and in such a manner, and under such a well-ordered plan, that their presentation as evidence will throw out clearly and distinctly the conclusions to be drawn. Thus, the strength of the facts are presented, and thus their influence is had upon the cause. In an- other part of this work, in discussing the proper argument of a case before the jury, reference is made to the value of probabilities in showing the strength or weakness of facts.' To avoid repetition this subject is not enlarged upon here, although it is 1 Chapter XXXVI, §§ 375, 376. § 170 PREPARING THE EVIDENCE. 179 of equal importance in preparing the evidence of a cause. § 170. Examination of the client. — The client must be examined and cross-examined with the utmost thoroughness, in order to elicit every fact and cir- cumstance relating to the action, as also with respect to its every detail of evidence and question of law involved. There will be many subjects upon which the client will remain silent, either from neglect or through ignorance of their importance ; for these reasons it devolves upon his counsel to draw from him every bit of testimony bearing upon the case, or necessary to its thorough understanding, and all that he says should be noted in the brief of facts, and read over to him at its completion. His attention should not only be directed to the strong positions, but as well to the weak points in his case, as also to the places where he may expect the severest cross-examination from the opposing coun- sel. Such an examination is well conducted only when it brings out both the strength and weakness of the client and of his cause. A foreknowledge of his peculiarities provides against a surprise at trial, while a familiarity with the weak points of his case is absolutely essential to its proper preparation. It can be assumed that each side of every case has its weak as well as its strong positions ; the careful ad- vocate is the one who becomes familiar with them all before trial, and is prepared to defend the weakness of his own side, as well as to present its well fortified propositions. This consultation with the client should be had in the absence of his witnesses, for in pointing out to 180 ELEMENTARY PRACTICE. § 171 him the weakness of his case, and tlie dangers lying in the way of success, in the presence of his wit- nesses, the apparent fear of the result shown by coun- sel might tend to weaken their belief in the justice of the client's cause, and prevent them from giving their entire knowledge of the facts. Before sending for his witnesses the client should give an outline of all that he expects to prove by them, so that the lawyer may the more readily ascertain their knowledge of the case, and be prepared to secure their testimony. § 171. Talue of an early examination of the wit- nesses. — There are cases where it may be necessary to proceed upon the information given by the client alone ; but, when it can be had, there should be an early consultation with his witnesses, and before the action is commenced. It not only gives the lawyer a better understanding of the case, and assists him in coming to a more certain knowledge of the advis- ability of bringing the action, but it often points out a history of the case nearer to the truth of the mat- ter, and one less hampered by the prejudices of the client. Mr. Chitty adds another cogent reason for this early examination, in suggesting that a minute inquiry into the facts and evidence made in the first instance, and before the defendant is warned of the litigation, produces a truer disclosure of the testi- mony of the witnesses than if the defendant has had an opportunity to caution his neighbors and friends from making any communications adverse to his in- terests.^ Again, the witnesses get nearer to the actual facts 1 3 Chitty's General Practice, 118. § 172 PREPARING THE EVIDENCE. 181 if asked their information when the occurrence is not remote from the time of their examination. Memories of past events are apt to fade, and, partic- ularly, is this true of the precise words used in a conversation, and which may be most important to the success of the cause. Notes made at the prelim- inary examination will also greatly refresh their recollections when they are re-examined immediately before the trial. The advocate, too, is benefited by an early knowledge of the facts. Those of recent occurrence excite the perceptive faculties, and in- crease the extent and ardor in a higher degree than do things long past. The experienced lawyer will admit that the second trial of a cause does not arouse the same interest as it did when it was first tried. This is partly by reason of the distance between the actual occurrence of the facts and their presentation to the jury. Every practitioner more enjoys and better tries fresh cases, and concerning late events. § 172. The examination of the witnesses. — It is well to have tlie consultation with the witnesses col- lectively, or, at least, those should be examined to- gether who are to testify upon the same subject. One may assist another with his recollections upon some material matter, or, what is equally valuable, may correct him if he should fall into an error. It is well to start off with the witness whose testimony is believed to be the strongest, as his evidence will have no little influence upon the others, and may very materially strengthen their recollections of the facts. As with the client, so with his witnesses, they should be thoroughly examined and cross-ex: amined to elicit all their information upon the sub 182 ELEMENTARY PRACTICE. § 173 ject; full notes being made of all they say, so far as possible in their own language, adding with care pre- cise dates, amounts and forms of expression material to the case. When completed, the notes should be read to the witnesses, obtaining, if possible, their signatures to attest their correctness. § 173. Secure facts, rather than inferences. — The duty of the advocate is to draw from the witnesses all the facts of which they have knowledge. He must seek the facts and not the inferences of the wit- nesses. They will be prone to give their theories or conclusions, but that will not be admissible at trial, and must be checked in the examination. It is more than the simple fact that is needed. Alone, it may seem to be improbable or untrue, and hence, all the surrounding circumstances must be brought out, for such incidents often prove the main fact to be true. It has been well said that " a witness disbelieved is a witness against you, which is almost as good as two on a division.'" At trial it may be questioned if the witness could have remembered the central fact, but if he can give the surrounding circumstances and incidents the reason for his memory may be ap- parent. Again, the details of the minor events may strengthen the memory of the witness as to the im- portant fact. One circumstance may be so united with another that the recollection of one may bring out the other. To secure these facts the examiner will do well to take up the thread of the story in the order of its occurrence, and thus the witness may be able to refresh his recollection. It is a skilled art to ' Harris' Before and After Trial, 64. § 174 PREPARING THE EVIDENCE. 183 do this successfully, but it is one of great value to the trial lawyer. § 174. Cantioning witnesses. — There are witnesses and witnesses. Some make a very unfavorable im- pression when on the stand, although the facts to which they are to testify may be well known to them. Those of good appearance and pleasing manner will command more respect and better secure the atten- tion of the court and jury than those of opposite ex- ternals. For this reason, when counsel has a choice of witnesses, those should be selected who will have the most influence by their appearance and demeanor. If such a selection can not be made the advocate is justified in suggesting to his witnesses the advisa- bility of making as good a show as they can when called to testify. So must they be warned to avoid a certain forwardness or flippancy that some men ex- hibit in public; to speak in a voice that can be heard, and to lay aside any unnecessary timidity or hesita- tion. In line with this last suggestion, those who are unaccustomed to the court room should be given some opportunity before the trial to observe the man- ner in which witnesses are examined, in order that they may not be entire strangers to the forumi when they are called. § 175. Training witnesses. — Not only must the witnesses be taught the value of externals, but they should also be trained as to the method and manner of their examination and cross-examination. They must learn to exercise caution and forethought in their answers ; to reply to the questions put to them only when they are understood, and then to take suf- ficient time to answer properly. So, also, must they 184 ELEMENTARY PRACTICE. § 176 be cautioned to follow in the line of the strictest truth and accuracy. Witnesses, though honest, are often apt to indulge in extravagant ideas, and to draw upon too fertile an imagination. Thus, in describing values, time, distance, speed, etc., some witnesses will make statements which on their face are untrue. The loss of belief in one part of the testimony of a witness is likely to reduce the credibility the jury will accord to all he may say. It can be safely said that wit- nesses who are careful in their estimates, and con- servative in their statements, make the best impres- sion both upon the court and jury, and correspond- ingly add strength to the side for which they are called. § 176. Training the witnesses for cross-examina- tion. — Particularly must the witness be trained to en- dure cross-examination. It is the most difficult or- deal through which he is to pass, and he should be prepared to meet it. To that end it is well to cross- examine him at the private interview with as much severity as he is likely to encounter in court, as thereby he will be somewhat inured to the examina- tion of the opponent, and may also disclose weak- nesses in his testimony against which the advocate needs to be forewarned. Those who are inexperienced in litigation will sometimes think they have the most difficult part of the controversy when subjected to the cross-examina- tion of a skilled advocate. If such a witness would remember that he has by far the easier task of the two, and that he can probably remain the master of the field if he will preserve his equanimity, stick to the exact truth, and not permit his adversary to trip § 176 PREPARING THE EVIDENCE. 185 him by questions he does not understand, he will be much assisted, and, perhaps, relieved from his em- barrassment. An able writer has thus well advised the witness : " He must be warned that the exterior ferocity of his future adversary will be apparent only, and that his smiling friendliness is far more to be dreaded than his snarl. If not of ready wit, he must be taught to watch the questions narrowly, to reply cautiously and in as brief and apt a sentence as is possible, to be- ware of committing himself on any point as to which he is not entirely sure, and never to attempt to ex- plain or reconcile any asserted or suspected incon- sistency in his evidence until requested to do so by his own counsel. * * * " A quick-witted and courageous witness needs a different preparation. He is not deceived by either frowns or smiles, and the principal effect upon him of the examination to which he is subjected, is to foment in him a desire to have an equal hand in the forensic duel. For this purpose he should be pro- vided with the proper weapons. So far as the ques- tions of the adversary can be foreseen or conjectured, his answers to them should be selected with a view to give the most effectual aid to his own side of the cause, and as far as possible to destroy the enemy. Important matters , which can not be in any other man - ner introduced, may thus be brought to the attention of the jury, to the confusion of the questioner and the ad- vantage of the cause ; and if the witness be excep- tionally able, this preparation may extend so far as to include a plan of answers which shall lead the adversary into questions that will open evidence 186 ELEMENTARY PRACTICE. § 177 otherwise inadmissible, and result in disclosures of the most damaging and even fatal character." § 177. Witnesses must not be influenced — Not only is it a moral wrong, and a violation of profes- sional ethics, to influence the testimony of a witness, or to seek to secure from him a false color to his evidence, or an exaggeration, but it is also a matter of very bad policy ; such a witness is very likely to break when on the stand, and will thus materially injure the cause for which he is called. Nor can a man of honor argue a case with his full strength if he feel that all of his evidence is not actually truthful. To win a cause the advocate must be sure in his own mind that he has right and justice on his side. They are colleagues whose assistance is most power- ful. On the subject of the evils of coaching witnesses Mr. Chitty says: "Every honorable practitioner, at all events, will take care that no part of his own or his client's intercourse with the witness can pos- sibly have the least influence upon him to give his testimony otherwise than strictly according to the truth and without evincing the slightest partiality to either party. Indeed, in prudence and policy, this is of the utmost importance to the client's inter- ests, because the least improper interference with a witness might so disgust a jury as to induce them to find a verdict against the client, although law and justice might, on the whole, be in his favor. "° To this, other writers have properly added : "If it appears to the jury that one witness has been cor- ^ Robinson's Forensic Oratory, § 183. ^3 Chitty's General Practice, 825. § 178 PREPARING THE EVIDENCE. 187 ruptly tampered with, a suspicion is engendered against both client and counsel that it is very diffi- cult to remove, and, indeed, one that it is often im- possible to displace. The jurors reason that, if one witness has been corruptly influenced, others have also been probably tampered with, and a feeling akin to anger is aroused which works infinite mischief, for jurors, like other men, quickly become indignant if it appears to them that there has been an effort to impose upon them." ^ § 178. Honest witnesses are the best. — Experi- ence will prove that honest witnesses — proven by the fact that they tell the truth whether favorable to their side, or not — have the greatest influence upon jurors. Often a party to a cause has won strength for his side by frankly admitting on the stand facts not of value to his case, but none the less true. So, of his witnesses ; if they give their testimony truth- fully, they will materially aid, even if they state facts not entirely favorable. When their evidence, with respect to damages, values, amounts, etc., is conservative it will have much more influence than will exaggerated statements. Truthful witnesses have the greatest weight, and nowhere is honesty better policy than in the witness chair. § 179. Witnesses' characteristics and tempera- ments must be studied. — The preliminary examina- tion of a witness not only gives a knowledge of his testimony, but secures what is also important, a knowledge of the witness himself. Witnesses, like all men, differ in their characteristics and tempera- 1 1 Elliott's General Practice, § 111. 188 ELEMENTAEY PRACTICE. § ISO ments. If they are met with and known before trial, the advocate is then prepared to conduct their exam- ination with greater ease, and to secure much better results. Thus, the dull and slow witness can be asked plain questions, easily understood, and be gently led to the chief subjects ; the swift or smart witness held down to the facts, and the timid helped over his embarrassment. Counsel will also be able to know whether it will be the wiser course to bring out the strength of the evidence of a witness in chief, or to let it remain for the cross-examina- tion of his opponent. There are many witnesses, the obstinate and uncertain included, who will help out the side on which they are called much more un- der the fire of cross-examination, especially if it be peppery, than on the direct examination. Again, the witness himself will be more at his ease when he knows the examining counsel, and has previously rehearsed his testimony to him. In short, the ad- vocate must meet and know the witnesses in a cause to properly conduct their examination. § 180. Clients' and witnesses' general reputation and character. — In addition to knowing the client and his witnesses, it is of value to the advocate to ascertain their general reputation and character, as well as their public standing. The jury will often be as much controlled by the character and reputa- tion of a client or his witnesses as by their testi- mony. Indeed, they will sometimes give but little weight to their evidence if they are persons in bad repute. This reputation may not be confined to their character alone, but may extend to their trade or business, if not to their religion or nationality. § 181 PREPARING THE EVIDENCE. 189 Hence, the advocate must both be prepared to defend the client and his witnesses in their reputations, and to secure full information concerning them before selecting the jury, in order that the case may be tried fairly and without unjust prejudice. The character of the business of a client is often of great import- ance. He may be engaged in a trade or occupation which may be regarded by the jury as immoral, or as against public policy, as they regard it, and thus their prejudices may warp their judgments. Again, the client may be one against whom class prejudices ex- ist, unjust as are such feelings, and preparation there- for should be had. Hence, the lawyer, in preparing a cause for trial, and in weighing the chances of suc- cess, must bear these things in mind, and to be fore- armed against the trial, must know all about his cli- ent, as well as his witnesses, and be able, so far as lies within his power, to overcome the prejudices which may exist against them. § 181. Statements of witnesses usually stronger than their testimony at trial. — It is to be remembered that the lawyer is likely to obtain stronger statements from some witnesses, and even from his client, at the office examination, than in the court-room, where, from fear, forgetfulness, or, possibly, from willful- ness, they may surprise the advocate with testimony quite different from that given by them at the con- sultation. Witnesses in the quiet of the lawyer's office, and away from the eye of the public, and, par- ticularly, when not under the fire of cross-examina- tion, are sometimes likely to put an entirely different color upon their evidence than when called to testify at the trial. This so frequently happens, even on 190 ELEMENTARY PRACTICE. § 182 direct examination, that the experienced advocate has become inured to such disappointments. The witness more frequently fails on cross-exami- nation, and, for this reason, should be subjected, at the preliminary interview, to as rigid a cross-exami- nation as he may expect to receive at trial from the hands of opposing counsel. This not only for the purpose of preparing him for the ordeal he must then pass through, but, equally, to ascertain whether his evidence can be relied upon. In no other part of the trial can counsel be more forearmed than by being thus forewarned of the strength of the evidence. The lawyer should also bear in mind this possible discount from the office testimony, when given in court, in forming his judgment of the chances of suc- cess, and in advising his client to bring the action, or to defend one threatened against him. § 182. Documentary proof. — The preparation of the oral evidence concluded, attention should be given to the documentary proof ; such as deeds, agreements, letters, etc. These should be seen by counsel, rather than to trust to a statement of their contents from the client, whose recollection may prove at fault, and who is more likely to give his own construction of the writings than their exact language. Again, a close examination may discover proof of fabrication, alteration or forgery. For the same reason copies should not be depended upon, but, in every case, the originals should be demanded when they are in the possession of the adversary. It is also of much value to make and keep accurate copies of the more impor- tant documents for use in case of loss of the origi- nals. § 183 PREPARING THE EVIDENCE. 191 §183. Consti'uing writings. — Construing docu- ments requires the exercise of the best' legal talent, and, for this reason, the successful lawyer must thoroughly study and understand them before trial. To properly master the documentary evidence he should know all the facts and circumstances under which they were executed and the situation of the parties at that time. These side lights, strongly ap- plied, will often render that intelligible which oth- erwise is not capable of a thorough understanding. All this requires from the advocate careful examina- tion and close thought, as well as thorough investi- gation, so that he may be the master of his docu- mentary, as well as of his oral, proof. § 184. Maps, plans, etc. — Much assistance is ob- tained in the elucidation of a cause by the produc- tion of maps, plans, photographs, models, etc. These will well illustrate the case and materially assist the court and jury in comprehending it; hence, where this auxiliary proof is proper and helpful, it should be produced. Of course it is to be remembered that these maps, plans, etc., must be accompanied by ev- idence as to their correctness given by those who prepared them, and by witnesses familiar with the places or property they are intended to present to view. § 185. Digesting the evidence — Ascertaining the strong points. — The evidence secured, the next duty of the advocate is to so thoroughly study it that he will know it in detail, as well as in its general plan and outline. It is not necessary that he should memorize the testimony, but he must sufficiently master the facts to have them thoroughly digested 192 ELEMENTARY PEACTICE. § 186 and understood. This done, he must apply his own judicial faculties to the case to ascertain what are its strong and what its weak facts, in order that he may- discover its essential and turning points. Experience teaches that almost every cause has one or two import- ant features, or distinctive questions, by which it will be chiefly controlled. The skillful advocate will make it his duty to discover these prominent points, and, when found, be prepared to show their strength, if within his proof, or to meet and overcome them, if presented by his opponent. § 186. Arranging the evidence. — ^The evidence, as it comes from the witnesses at the preliminary ex- amination, will be crude and need working into such shape as will show its strength, and, in such a man- ner that it can easily be grasped by the jury. To do this the advocate needs to adopt a rigid system so that his forces may be properly arrayed for the bat- tle. The trial should not be a disorderly skirmish, but a well planned campaign, with every regiment in its place, every soldier ready to fight his best, and the general in command in possession of a perfect plan of action. He must have in mind a theory on which he is to try his cause, and one which is so complete and well in hand that from it will radiate the whole system of the case. This theory can be likened to the spinal column of the body. To it must be fastened, in their proper order, the bones and sinews of the facts, which, clothed with the flesh of the law, and filled with the life and blood of the argument, will build up and present the perfected whole. It is essential that the evidence at the trial should have been arranged in such an orderly manner that § 187 PREPARING THE EVIDENCE. 193 it may be logically submitted to the jury, that they may be enabled to fit it together and comprehend the bearing one part has upon another. It is like the construction of a house; the plan must first be made, then understood by the builder, and then closely fol- lowed. Those who watch its erection will, at its completion, see and understand it in all its parts, as well as a whole. The evidence of a case can best be presented in the order of its occurrence, by arranging the narrative of events in the sequence in which they happened. By this plan the most complicated case can be unraveled, and the relation of one set of facts to another discovered and com- prehended. § 187. The probabilities of facts. — As we shall show at length in another place, more than the mere naked facts are required ; the probabilities of those facts must also be shown.' To do this the surround- ing circumstances must be given in order that the facts which are presented may both seem to be true when proven, and can be shown to be probable at the argument. These inferences from the facts the law- yer must resolve out of the evidence, and so present his facts to the jury that they will see their force and effect, and be able to apply them to his client's case. Thus, and thus alone, can the advocate feel assured of winning his cause. § 188. The brief of the facts. — The notes taken at the examination are necessary for use in making up the line of conduct of the case. These should be as 1 Chapter XXXVI, §§ 375, 376, 377. 13 194 ELEilENTAEY PRACTICE. § 189 extensive as possible, especially where precise lan- guage is to be proven. From the notes the trial brief of facts is made, which has for its first object a plan or order under which the evidence is to be introduced. As has been already said, this should follow the events in the order of their occurrence, so that the case may go to the jury in its natural sequence. Its second object is to give an outline of that which will be proven by each witness. This need not be in extenso, but should cover in a short, but still intelligent man- ner, a statement of the leading points of the evidence. A properly constructed brief is like a well-told story; it should have a natural appearance, and be arranged with respect to the order of time, place and circum- stances of the case. Under the practice in England, where the witnesses are seen and the evidence is pre- pared only by the attorney, and then submitted to the barrister, who tries the case, very elaborate briefs a,re prepared and much more extensive than those neces- sary for the American lawyer ; still, some of the rules laid down by Mr. Chitty for their preparation are valuable in the way of suggestions ; they relate di- rectly to the plaintiff's case, but are equally appli- cable to those of the defendant. We have stated them much more briefly than as given in the original text, some being entirely omitted. § 189. Chitty's rules for preparing the brief of facts.' — 1. "After the draft of the statement of the facts, with observations and proofs, has been settled, then the attorney should most carefully and clearly analyze and state in three or more distinct para- ' 3 Chitty's General Practice, §§ 847-858. § 189 PREPARING THE EVIDENCE. 195 graphs, concisely, first, the plaintiff's case, and very distinctly every item of the plaintiff's claim ; sec- ondly, the expected defense ; and thirdly, the best answer to that defense. These three paragraphs, very legibly written, should form the commencement of the brief immediately after the statement of the pleadings. 2. "The case or full statement of the facts, with observations, should properly follow the above sug- gested analysis, and precede the statement of the pro- posed proofs. The detail of facts should be in the natural historical order, stating circumstances as they arose, whether for or against the plaintiff. 3. "In preparing the brief, it is in general advis- able to incorporate all important or explanatory doc- uments and letters, unless they be very voluminous. It will be advisable also in the margin to state the date of, and designate each by numbers or letters, as A, B, 0, etc., corresponding with the same numbers or letters indorsed on the backs of each, so that they may be produced with the utmost expedition. In many cases it may be very material to have maps, plans, photographs, or even models of lands, water- courses and buildings carefully prepared, and their correctness proved by the artist. 4. "A compact analytical table of the dates of every material fact, arranged in natural order, may then in general follow with utility. 5. "After the statement of facts, it is generally useful to introduce some observations and reasonings on the plaintiff's case, and proofs on the part of the defendant. 6. "In an important cause, or where the docu- 196 ELEMENTARY PRACTICE. § 189 ments or witnesses are numerous, it has ever been found useful, immediately before the detailed state- ment of the proofs, to insert a brief sheet containing an 'Analysis of Proposed Proofs,' being merely an abstract of the facts, and referring to the pages where each will be found. 7. "In point of arrangement, the best course is first to state the formal proofs which may be indis- pensable in certain causes, independently of the merits. After these, then the full proofs of the merits, according to the nature of the case, should be stated in natural logical order. In preparing the latter, attention should bg paid to arrangement, and much judgment is frequently required. 8. "The evidence of the same witness should not be detached into the various branches of the case in which he is to testify, but should be given consecu- tively ; a marginal note calling attention to the dif- ferent points and facts to which he can testify. 9. "The age, character and temperament of each witness, as well moral as physical, should be stated, so that counsel may be forewarned for the examina- tion. 10. " The proof to be adduced by a witness should be stated in the very words he used on the prelimi- nary examination, when it refers to precise language, dates, amounts, etc. 11. " After concluding the evidence it will be proper to state more in detail than in the previous analysis the expected defense, and the evidence that will probably be adduced in support of it, with full observations upon its fallacy or weight, and the names and characters of the witnesses for the opponent, and §189 PEEPAEING THE EVIDENCE. 197 all circumstances upon which a cross-examination may be useful ; but in preparing the latter, the facts only are to be stated, leaving it in general to the counsel's discretion what particular questions should be put, and which need not to be stated in the brief, though sometimes useful as another mode of stating the facts." The beginner at the bar, who has sufficient time to prepare a brief of the facts of his cases in the form used by the skilled attorney in England, will find that he has thus acquired a mastery of the cause which could not be so well gained in any other way. The English brief is not as valuable at trial with us as it is there, but in preparing a case for trial that systena has many advantages. In addition to the trial brief, or rather supplemen- tary to it, the advocate should have a plan of battle, that is an outline of the course he intends to pursue, and the order in which he proposes to move his forces, whereby he will be able to try his case more syste- matically, and be less likely to omit or overlook an important piece of evidence or a document necessary to his case. CHAPTER XXI. PRBPAKING THE LAW. § 190. The theory of the case. 191. The theory must be settled at the outset. 192. Instances of selecting improper theories. 193. Settling the principles of law governing a cause. 194. Knowledge of the principles of the law essential to the lawyer. 195. Difficulties of ascertaining the subjects of the law covering a case. 196. Helps in determining the law of a case. 197. Want of uniformity in naming legal subjects. 198. A case illustrating the subjects of law to be examined. 199. Statute law. 200. Text-books. 201. Law periodicals. 202. Case law. 203. Selection and discrimination of cases. 204. When a decision is not an authority in a case. 205. Criticism of cases. 206. The other side of the case should also be prepared. 207. The brief of the law. 208. A thorough brief needed where questions are reserved. 209. Preserving briefs for future use. § 190. The theory of the case. — The evidence se- cured and digested, well arranged and briefed, the duty of the advocate is to prepare the theory of his case, and upon which it is to proceed. This includes the plan of action, the grounds upon which it is to (198) ^ 190 PREPARING THE LAW. 199 be tried, the logical sequence of its facts, and the de- termination of the principles of law governing the case. This theory has been well defined to be "a comprehensive and orderly mental arrangement of principles and facts, conceived and constructed for the purposes of securing a judgment or decree of the court in favor of a litigant.'" There may be cases of such inherent strength that they can be won without a theory, but almost always it is required. A study of the causes won by the successful members of the profession will develop a plan or a theory upon which they proceeded, not only guiding them to victory, but, apparently, the chief means to that end. As we have said in a preceding section, a proper theory of the facts is required in order to so arrange the evidence that one part may follow the other in proper sequence, and that all will unite in establishing the one central conclusion. So, must the law of the case be prepared and applied in accordance with this plan, in order that the facts as proven at the trial may come within and establish that theory. It must be remembered that whatever breaks does so at its weakest point, and here arises the necessity for the utmost care in working out the plan upon which the cause is to proceed. Wherever the case seems weak it must be guarded and fortified, in order that it may be defended from the attacks of the adversary. The advocate must expect his oppo- nent to know where he can best assail him ; thus, his weak points are, correspondingly, the strong ones of the other side, and with that in mind he prepares his case. 1 1 Elliott's General Practice, § 93. 200 ELEMENTAEY PRACTICE. § 191 § 191. The theory must be settled at the outset. — This theory should be worked out before the action is commenced ; certainly, while it is being prepared for trial. It must be well thought out and digested,, for upon it the advocate will either succeed or fail. Once adopted it follows through all of the case, andean not, usually, be abandoned. This, because the theory will appear in the pleadings and in the issues, and to those issues the case must be confined. The law- yer must settle whether his cause is to be tried at law, or in equity; the form it will take in the plead- ings and procedure; the line it will follow; and the evidence and legal principles which will be con- trolling at trial. Often his success will depend upon his choice of routes, and of the means for trans- portation he has selected for his journey; and at the conclusion of his case he may find that he has made an unwise election, and that by another route he would have arrived at the desired end. Neverthe- less, the road and the conveyance must be decided upon before the journey is begun, and it is, there- fore, of the utmost importance that the greatest care and forethought should be exercised in settling these preliminaries. § 192. Instances of selecting improper theories. Illustrating the selection of theories these instances are cited by Judge Elliott: "In one case, counsel brought an action on a promise and succeeded, al- though the statute of limitations was pleaded; while, on the same facts, the first action brought for the re- covery of damages for fraudulent representations was defeated by the plea of the statute of limitations. In another case, an action was brought on a promis- § 193 PEEPARING THE LAW. 201 sory note. The defendant pleaded a discharge in bankruptcy; the plaintiff replied the general denial, and failed; although, if he had pleaded that the debt was a fiduciary one, he would have succeeded, as many others did in cases where the facts were precisely the same in legal effect. In still another case, a man fell into an excavation in a public street, made by parties licensed by the municipal corpora- tion. The theory adopted by counsel was that the corporation was liable for the negligence of its li- censees; but the theory was unsound and the plaintiff was defeated. The same facts were laid before other counsel; they constructed a theory that the corpora- tion was liable because it was chargeable with notice of the dangerous condition of the street, and on this theory tried the case and secured a verdict.'" § 193. SettKng the principles of law gOTerning a canse. — The facts of a case well in hand, and the plan of action laid out and well digested, the next duty of the lawyer is to determine the principles of law governing his case. To do this properly he should first take up the cause as original matter, and endeavor to settle what the rule should be on principle, before looking up the authorities to correct or confirm his first impressions. This he should try to do im- partially, with the exercise of his best judgment, and without considering the advantages, either to himself or his client, to result from success. He should look upon the case as would an outsider, such as the court or a referee, and before his opinion may be changed by consulting the authorities. " 1 Elliott's General Practice, § 89-90. 202 ELEMENTARY PRACTICE. § 194 But it is important that these first impressions should not be permitted to warp his judgment, when an examination of the decisions may tend to show that the rules of law governing the case differ from his previous conception of what they are or should be. Like the upright judge, in reviewing the cause of the unsuccessful suitor, the careful lawyer will give his judgment a new trial, if he finds it has been erroneous. It is presupposed that the lawyer has a knowledge of the rudimentary principles of the- law, and of the ordinary rules of pleading, practice and evidence. Without that much knowledge his prepa- ration of a cause would be very weak and inefficient. § 194. Knowledge of the principles of the law essential to the lawyer. — In earlier days, and before the present enormous growth in reported adjudica- tions, the lawyer was compelled to very largely depend upon the established principles of law to guide him in the preparation and argument of his cases, and was often without any decision even approaching the case he had in hand. Hence, he was compelled to base his positions upon principle, and, in that way, to reason out his client's cause. While the growth of case law has made unnecessary much of the labor formerly required in preparation, still, it is clear that the lawyer of an earlier time was sharpened to his work by the thorough study he was compelled to give his causes, and by the necessity of referring them to, and measuring them by, the standard prin- ciples of law. None the less should the modern law- yer be well grounded in these principles, even if he is able to cite a case apparently sustaining his posi- tion. He needs this knowledge because a reported § 195 PREPARING TflE LAW. 203 decision is not an authority unless it can be defended on principle, and also that he may know that the citation does rule his case. The established princi- ples of the law are basic, and he is indeed a poor lawyer who has not mastered them. With them in mind he can show the application of a decision, or point out where one which has been cited by his opponent is not an authority for the position he has taken ; while, without this fundamental knowledge, he is at the mercy of a skilled and learned antagonist. § 195. Difficulties of ascertaining the subjects of the law coTOring a case. — One of the difficulties of the preparation of a case is to determine the general subjects of the law to which it relates, and then which one of its many departments contains the decisions and statutes covering the various questions involved in the controversy. Here, the learning and ability of the lawyer are at once called into action ; he must know for what he is to search, and where to find it, and to do this he must know what branch of the law he is to investigate. It is this very thing which often so distresses and perplexes the lawyer that he will echo the saying: "It is not so difficult to know what the law is, as it is where to find it." He will sometimes flounder for a long time in the mire before he feels the solid ground under his feet, and is able to take hold of something leading him into the right path. This is not always the case ; but every experi- enced advocate will remember certain causes, partic- ularly those of his novitiate, where he devoted many weary hours to ascertaining into which one of the branches of the law his case fell, before he was able to pick up the thread of the law enabling him, in 204 ELEMENTARY PRACTICE. § 196 time, to form the strands making up the strong rope which firmly bound and fastened his cause. § 196. Helps in determinmg the law of a case. — It is most difiicult to give the beginner much assist- ance in this direction, but he will find that he is helped by his thorough mastery of the principles of the law, and that continued study and experience will so aid him that, in time, he can make his start in the preparation of the law of a case much more readily than in the earlier days of his practice. Among the great helps to the proper preparation of causes are some of the modern digests and text- books. While many text-books are very inferior in the essential of complete indexes, there are modem writers who have well performed that important duty, and have given the profession works, not alone valu- able for their subject matter, but, still more, for their practical and elaborate indexes. And so it is with some of the digests ; they have been prepared for the purpose of lessening the labors of the profession, by so increasing the subdivisions of their subjects that the lawyer is able to find a beginning for the ques- tion he may have to examine. The modern system of digests is to be commended. They accomplish the two important objects of saving time, and of so subdividing the subjects as to materially assist the lawyer in securing a start in the preparation of his case. The enormous number of reported decisions of our day requires some form of digest or index in order to make them of any practical use to the pro- fession. The American Digest, from the West Pub- lishing Co., and the General Digest, published by the § 197 PREPARING THE LAW. 205 Lawyers' Co-operative Publishing Co., index all the decisions for each year, and either forms an excel- lent supplement to a good working library of well selected text-books. § 197. Want of uniformity in naming legal sub- jects. — The student will learn that what he needs to find is the name given to the subject of inquiry in the digests and text-books ; that found he is started on his journey. It is in this, however, that all the law writers and editors are not uniform ; unfortu- nately, they do not unite in using the same titles — would that they did — and often the lawyer is com- pelled to look under more than one head to find that which he seeks. For example, in some reports and text-books we are referred to Bills and Notes ; in oth- ers, to Notes and Bills ; in still others, to Promissory Notes, and yet again, to Negotiable Instruments ; while some, perhaps, may entitle the subject Com- mercial Paper. This lack of uniformity adds to the labors of the profession, and raises the hope that at some future time we may be favored by one name or title for the same thing. § 198. A case illustrating the subjects of law to be examined. — By way of illustration, and showing the questions of law involved in a cause, and the different subjects which may be required to be examined, this may be given, although it is a very simple case, and not at all difficult of preparation. Let us suppose that our clients hold the note of a firm given for merchandise, and upon which they desire to bring suit. The defenses, we will say, are two: (1) By one of the alleged partners that he 206 ELEMENTARY PEACTIOE. § 198 had withdrawn from the firm, and had given notice thereof by publication in a newspaper at the place where the business was carried on. (2) By the other defendants, that the goods for which the note was given were subsequently found not to be of the quality stated in the warranty made by the agent of the vendors. These defenses the plaintiffs are pre- pared to contradict with evidence ; they also claim that they had no personal notice of the partner's with- drawal, and, in addition, will be able to prove that the note upon which the action is to be brought is a renewal of a former note given for the goods so sold; the renewal having been granted by the plaint- iffs at the request of the defendants, on the ground of the alleged bad quality of the articles, who also stated that they would waive the defect if the exten- sion was granted. The plaintiffs also advise us that they never had dealings with the defendants' firm prior to the date on which the copartner, specially defending, alleges his withdrawal. Now, assuming our facts to be susceptible of proof, we should be able to recover against all the defend- ants, excepting the ex-partner. To prepare our brief, we must look up the law under the following sub- jects : (1) Partnership, division, dissolution, sub- division, notice ; where we will find that the plaint- iffs can not hold the retiring partner, even in the absence of personal notice, for the reason that they did not have dealings with the firm prior to his with- drawal therefrom. (2) Sales of personal property, division, warranty; to ascertain how far that alleged in this case would be valid against the plaintiffs. (3) Agency; to determine the authority of the sales- § 199 PREPARING THE LAW. 207 man to make a contract of warranty binding his principals ; and, the best ground we have to over- come the defense of warranty, (4) Estoppel; where we will learn that the defendants can not deny the validity of their note, or set up failure of considera- tion, for the reason that they not only kept the goods, but also agreed to pay for them, knowing their infe- rior quality, upon the promise of the plaintiffs to renew their note ; such renewal being the one now to be sued out. § 199. Statute law. — The principles applicable to the case settled, and the branches of the law under which it falls determined, attention should first of all be directed to the statute law before consulting the text-books or reports. Very frequently a case is ruled by a statute, and, as that takes precedence over and controls the common law, it must first be examined and determined.' The enactment found applicable to the case, it is first necessary to test the statute to ascertain if it is constitutional, and then to interpret it. This is a work of no mean order, and is often very diflBcult and perplexing, as words are frequently uncertain, and their precise meaning not easy to determine. The more complex and in- tricate the language of a statute the more readily can it be attacked ; when it is in plain and simple words it is more sure of standing the test. It is more than the mere letter of the act which must be examined; for, in construing it, we are to take into consideration the purpose for which it was enacted, the evil it was intended to remedy, the con- ' See the instance cited of a statutory change of a common law rule, ante Chapter II, § 22. 208 ELEMENTARY PRACTICE. § 2 dition of the law at that time, and the common h upon the subject. The statute must not be consi ered as an independent rule of law, but as part of great system. • It should also be remembered th statutes upon the same subjects are to be construi as being in pari materia, and so all must be weighi together. A statute found, it is essential that all the autho] ties construing it should be examined, in order ascertain the meaning and force which have bee judicially given it. It may be that it is a re-enac ment, or a modification, of an earlier statute ; : that case the decisions upon that earlier enactmei may throw a strong light upon the later one, ai materially assist in its construction and interpret tion. § 200. Text-books. — The labors of the lawyer a: materially lightened by thorough and well-writte text-books. There is a choice in books, some bein of but comparative value ; those being the best whic discuss principles, rather than those which merel gather cases together without giving them thoroug consideration. A good text-book well planned ar written, and containing a thorough and accura index, is of the greatest assistance. When it di cusses the underlying principles, and collates tl cases, applying those principles to their reporte facts, it is a most valuable help ; but if it is mere! a collection of cases, it is nothing more than a digest < index, and can not rank with a philosophical treatis Often a text-book is full of errors, notably in citiii cases, which, on examination, do not bear out tl rules laid down by the writer. That proof must 1 § 200 PREPARING THE LAW. 209 applied to the book, and when it is found that the text will bear the test the writer's statement can be taken to be the law. When the author denies the authority of a decis- ion, and would mark out a different rule, great care should be exercised in following his views ; the law is not what the writer says it is, but what the courts have declared it to be. When the courts have dif- fered in their rulings, and the writer carefully weighs the cases, and refers them to established principles, his judgment is of value ; but when he lays down a rule at variance with the current of authority he can not safely be followed. There are many text-books of standard authority, and which have frequently been cited and relied upon by the courts. Take for example, Mr. Ben- jamin's invaluable treatise on the law of sales ; a work which gave him a high position at the English bar, and is a recognized authority in all courts. That is, indeed, a philosophical treatise, for it ably dis- cusses the principles of the law which he treats, and collects in a masterly manner the reported decisions. Such a text-book is of inestimable value to the pro- fession, and can safely be relied upon. A valuable method to adopt in the use of a text- book is to turn to the table of cases and there find a leading case upon the question under examination ; that will enable the student to find in the book itself the subject he is looking for, and will assist him in discovering other authorities bearing upon that ques- tion. The comments of the writer upon that case will enable the lawyer to follow the line of thought 14 210 ELEMENTARY PRACTICE. § 201 he is working upon, and will assist in putting him abreast of the law applicable to his cause. § 201. Law periodicals. — In line with text-books are leading articles in the law periodicals. Some of these are of decided value, for the reason that their authors have concentrated their labors on a sub- division of one branch of the law, and will have treated that subject with greater care, and more labor, than will be found in any text-book covering a more general division. These articles are widely scattered, and difficult of access, except in the larger and public law libraries. An index to these articles, lately published, will prove of assistance in finding these monographs of the law, and, where the lawyer can have the use of a large library, he will find it to his advantage to examine this index for the purpose of finding the periodical which contains any article treating the subject he has under consideration.' § 202. Case law. — An examination of the text- books and periodicals completed, the digests of the reports of the courts of last resort of the state should be searched under the same headings, and the re- ported decisions applicable to the case in hand care- fully studied and briefed. These are to be followed by the cases in the reports of the inferior courts of the state, for it is to be remembered that those ad- judications often have more weight than the decisions of the courts of last resort of other states, as the judges delivering them will be known at home, and their opinions regarded more favorably than those of other courts. Following these should come the re- ' "An Index to Legal Periodical Literature." Boston: C. C. Scale. 1888. § 203 PREPARING THE LAW. 211 ports of the Supreme Court of the United States and of other federal courts ; the English reports, and those of other states ; the inquiry being carried down to the latest adjudications. § 203. Selection and discrimination of cases. — The lawyer is likely to secure too many, rather than too few decisions. Here, again, lies one of the dif- ficulties in preparing a brief, for it is to be borne in mind that one case, well considered, clearly ruling the question, and by a court well regarded, is of more value than a dozen not so well considered, or as clearly defining the rule. It is well to study all the cases applicable to the question, and, perhaps, to note them in the brief in a secondary way, but the advo- cate should place his reliance upon, and first cite in his brief his strongest and best authorities. While the great increase in modern days of re- ported cases enables the lawyer to secure decisions ruling many of the causes he is to try, or approxi- mating to them, it has increased his labors in that he must the more exercise his power of discrimination.' As no circumstances are always exactly alike, so, sel- dom, if ever, can he find a case where the facts are precisely the same as those of his own cause. This dissimilarity in the facts and circumstances of cases compels the lawyer to call to his aid the power of dif- ferentiation, the art of distinguishing one case from another. Thus, if the decision is one cited by him- self, he must be able to show by logical reasoning that the differences in the facts do not alter the rule, ' A late writer estimates the number of law reports in the En- glish language at 69,000, and the cases they contain at more than 2,000,000. 212 ELEMENTARY PRACTICE. § 204 and, if a case is to be used against him, he should be equally prepared to mark the variance in the facts, and to bring his own cause within the exceptions which he points out. He will often find that a re- ported case, which, at first reading, seems to rule his own, will develop such differences in fact as to take it out of the way as an authority in his cause. A general rule may have been laid down by the courts, but his own case may prove to be such an exception as not to be within the application of that rule. This is for the lawyer a mental problem, requiring an ex- haustive study of the decisions and their careful comparison with his own case. He must be the mas- ter of the established principles of the law, for thus alone will he be able to bring his causes within those principles, and to firmly fasten it upon what has been held to be the law. Lord Abinger well said : "I may observe, what a long course of experience has taught me, that the lawyers least to be depended upon are those who are in constant pursuit of cases in point to govern their judgment, and who, therefore, seldom have sufficient, knowledge of principles to judge for themselves." § 204. When a decision is not an authority in a case. — It is to be remembered that a judicial decision is, in a strict sense, an authority only in the jurisdiction where it is delivered. While all decisions are called authorities, in a general way, they are but arguments outside the jurisdiction where they are pronounced ; they may be arguments of such force as to be taken as authority, but it is seldom that they will be ac- ^ Memoirs of Lord Abinger, 45. § 205 PREPARING THE LAW. 213 cepted in reversal of a settled rule in the forum where they are cited. The doctrine of stare decisis is of great force, and rarely will the courts forsake their former positions to adopt the contrary opinions of the courts of other states. Hence, the lawyer must not expect to win where the current of author- ity in his own state is against him, even though he may find numerous decisions of other tribunals strongly in his favor. His courts may let him out by discovering an exception to their own rule, and may, in time, by making so many exceptions, "eat out the heart " of their own rule, but a flat reversal of one of their former decisions is a rara avis in the courts of last resort. § 205. Criticism of cases. — It is an accomplish- ment to know how to properly criticise a case; and this is of use both in the preparation and in the trial of a cause; as in the former, a decision may be found, and in the court room, one may be cited, properly open to objections. Skillful criticism of cases evi- dences a good lawyer, and is one of his best weapons. The first thing to do is to determine the precise point which has been adjudicated. The law of a case is that only which has been pronounced as a ruling upon the issues thereby raised. To determine those issues the facts of the case must be carefully studied, and whatever may have been said by the court in its opinion, outside that which rules the issue, is but dicta; it may have influence as an able argument, but it does not have the force of an ad- judication. Lord Manners said : " It is always un- satisfactory to abstract the reasoning of the court from the facts to which that reasoning is meant to 214 ELEMENTARY PRACTICE. § 206 apply. It has a tendency to misrepresent one judge and mislead another.'" For the reason that it does not fully state the facts, the reporter's syllabus of a case can not be fully re- lied upon. Again, it is often in error in stating just what has been decided, some reports containing most glaring mistakes in this direction. A syllabus is of value as an index to a case, but should not be depended upon as correctly stating the law there adjudicated. Further criticism of a case is of the nature of the report, many being of well known inferiority, and lacking in accuracy and careful preparation ; of the language of the opinion, showing illogical reason- ing, or want of citations in support of the adjudica- tions, or unconscious overruling of other authorities; that it has been delivered by a divided court, the dis- senting opinion being much the stronger in logic and reasoning ; that it goes off on another point than the one for which it is cited ; that the case is one de- cided by an inferior court ; and, lastly, that the decision has subsequently been overruled, limited, criticised, or distinguished in later cases, or is now obsolete, or has not been followed in other courts. Any one of these attacks upon the case, if skillfully made, and based upon a thorough study and knowl- edge of it, may remove the decision from a position of authority.^ § 206. The other side of the case should also be prepared. — It is not alone necessary that his side of 'Revell V. Hussey, 2 Ball & Batty 286. ^ Wambaugh's Study of Cases is a valuable work on the sub- ject of the proper criticism of decisions. § 207 PEEPAEING THE LAW. 215 the case should be well prepared ; the lawyer should also make himself familiar with that of his opponent, by thoroughly examining the cases upon which he may expect him to rely. It is a^ mistake to under- estim.ate the ability and labors of the counsel en- gaged on the other side, for the lawyer should ever bear in mind that his antagonist is probably familiar with the law and facts of the case, and will take care of his side to the best possible advantage. To be entirely ready properly to try his cause, the advocate should prepare the law applicable to the case of his opponent with as great care, and as much diligence, as he applies to his own positions. He should take up the case of his adversary on the theory which the pleadings seem to indicate will be the line of defense, and, if that scheme is not appar- ent, he should put himself in the place of his an- tagonist, and construct a theory with as great care and thought as if it were his own. If he is in pos- session of the plan of the enemy, is familiar with the authorities supporting it, and has mastered the other side of the case, he is ready for the trial, and when it comes off is the better enabled to defend his own positions, as well as to attack those of his opponent. The able general is the one who knows both the strength of his forces and the weakness of his own positions, and is also the master of the strong and weak points of the adversary. Thus, and thus alone, is he prepared to gain the victory when the battle is on. § 207. The brief of the law. — The preparation of the case finished, there should follow a thorough brief of the law, in the orderly arrangement of the 216 ELEMENTARY PEACTICE. § 208 several subjects ; referring to the various principles, and citing the authorities upon which the case is to be rested ; seeing to it that those decisions bear out the positions assumed, for a statement of law, not supported by the authorities cited, can not fail to be injurious to the cause. As we have before said, the strongest and best cases should first be cited, giving the others a secondary place in the brief. It is to be remembered that almost every case has one prominent question upon which it will turn, whether it be of law or of fact ; therefore, the strength or weakness of the party upon that point leads him either to victory or defeat. Hence, the brief should be chiefly devoted to that question, and to its careful preparation the labors of the advocate should princi- pally be given. § 208. A thorough brief needed where questions are reserved. — It can well be said that while the oral argument is as silver, the brief is golden. The ad- vocate should leave a good impression on the minds of the court at the hearing, but he must depend upon his brief for a favorable decision. This is of the ut- most importance in cases where the questions of law are not to be decided at bar, but are reserved for fut- ure investigation and determination. Such are ar- guments in the appellate courts, where so many cases are heard that counsel can only hope to state his po- sitions so clearly that they will seem to the justices to be of sufficient importance to entitle him to a fa- vorable memorandum in their notes, the full strength of his case being discovered from his submitted brief. A brief can be too verbose, and, therefore, may not § 209 PREPARING THE LAW. 217 receive full attention ; but, if it is succinctly drawn, and the positions are clearly and concisely stated, with the authorities well arranged and accurately quoted, the advocate can feel sure that he has an ar- gument speaking for him in his absence, and while the court is making up its decision and opinion. § 209. Preserving briefs for future use. — It is of practical value to preserve copies of all briefs, as they will be found of great assistance, not only in future arguments of the same case, but, as well, in the preparation and argument of other cases involv- ing similar questions. Some system should be adopt- ed, both to preserve the briefs and to readily find them ; such as by properly indexing their various subjects. It is worth suggesting that all printed briefs should be bound in volumes of convenient size, and, also, that they should be well indexed. The accumulation of such books in a lawyer's library will prove of value as his practice increases, and ma- terially assist him in his future work. In the same line, it is often valuable to secure the briefs of coun- sel in reported decisions, if they can be had ; this be- cause the reporter's notes of the argument are usually very meager, and often much is omitted which is of great value in mastering the questions involved in the case. CHAPTER XXII. SELECTING THE REMEDY ; JURISDICTION ; AND CHOOS- ING THE FORUM. § 210. Selecting the remedy. 211. Jurisdiction. 212. Local and transitory actions. 213. When and how questions of jurisdiction can be raised. 214. Choosing the forum. 215. Court or jury? 216. Change of venue. 217. Choosing the forum ; state or federal courts ? 218. Choosing the forum; arbitration. 219. Practice in submitting causes to arbitration. § 210. Selecting the remedy. — While the adoption of a code of civil procedure in many of the states has there reduced the number, and thus narrowed the choice, still, even there in some degree, although more so in the jurisdictions where the common law practice prevails, there remains an election of remedies which a plaintiff may adopt ; a selection which is a matter of no little moment, and often involving much difficulty. The remedy chosen, the pleadings and the theory of the case must be made to conform to it, and, hence, all this should be carefully consid- ered in making the choice, as a mistake in this direc- tion may result in defeat, or in seriously endanger- ing success. The selection is not merely confined to determining (218) § 210 SELECTING THE EEMEDY. 219 the proper remedy, but extends, as well, to deciding what is the best one. Thus, there may be an action for a tort, or one upon a contract ; in the latter, the proof may be more readily secured, while in the former there might be a larger recovery. For ex- ample, it may be easier to secure a verdict in an action for fraudulent representations than it would be in an action on the implied contract ; because a complaint charging fraud may open the door to evi- dence which would not be admissible in the other action ; while, also, the jury may be more strongly influenced against the defendant by evidence of fraud than they would be by proof of the implied contract. On the other hand, it may be more difficult to gain a verdict by attributing moral wrong than by the simple charge of non-performance of a contract. Again, the nature of the relief may determine the choice of the remedy. For instance, personal prop- erty may have been sold upon condition, and posses- sion obtained by the defendant without performance of the condition precedent ; here, the choice would be between an action in rem, such as replevin to secure possession of the property, or an action in personam to recover its value. In such cases the solvency or insolvency of the purchaser might con- trol the choice, and upon those considerations the selection of the remedy would probably ,be made. It is not within the scope of this work to further refer to the choice of remedies, the suggestion being merely given of the necessity for care and caution in making the election. The general rule to be remembered in selecting the remedy is this : " When a party has a choice of 220 ELEMENTAEY PRACTICE. § 211 inconsistent remedies the selection of one, with full knowledge of the facts and of his rights, is a bar to the other. But the rule is otherwise when the reme- dies are concurrent, and not inconsistent. In such a case the pursuit of one is not, necessarily, a bar to the other. Nor will the mere fact that a plaintiff mistakes his remedy, believing he has two or more remedies, when he has not, and pursues the wrong one, of itself prevent him from subsequently obtain- ing redress by the proper remedy." ' § 211. Jurisdiction. — One of the basic questions at the inception of an action is that of jurisdiction, for it must be brought in a court of competent juris- diction with authority over that case or class of cases. The lawyer must be able to promptly decide as to the court in which his action is to be commenced ; and, if two courts have jurisdiction, then which one is preferable for that case. In this matter the client depends upon his counsel, and will hold him respon- sible for the exercise of his choice. It is beyond the purpose of this work to discuss the many questions involved in the subject of the jurisdiction of the courts, it being our intention, rather, to offer a few suggestions on that subject, which may be of some benefit to the young lawyer. The statute law of his state will determine the ex- tent of the jurisdiction of its courts, and to that law he is directed in securing a knowledge of the subject. This will include full information as to how far, and to what amount, the courts, not of record, have au- thority to act ; as also the rules governing the trial 11 Elliott's General Practice, §276, and cases cited. § 212 SELECTING THE REMEDY. 221 of causes in courts of law or equity. The common law differences between those courts, and upon that distinction the statutes are based, is that the former generally afford redress for injuries to legal rights, and give effect to legal defenses, while the latter are, usually, confined to a consideration of actions for re- dress of injuries to equitable rights not recognized at law, and to equitable defenses not available in suits at law. Where there is concurrent jurisdiction, one court will not interfere with the other if the latter has already taken the case. § 212. Local and transitory actions. — The differ- ences between local and transitory actions is also to be considered in connection with the subject of juris- diction. The general rule is that actions affecting the title to or the possession of land, or of injuries thereto, are cognizable alone in the county where the land lies ; while cases are transitory when the trans- actions out of which they arise are those which might have taken place anywhere, and, hence, such actions can be instituted in any court having jurisdiction by law over the persons to be sued, or over personal property which forms the subject of an action in rem when it is found in that jurisdiction. Hence, actions to enforce contracts, to recover damages to persons or chattels, and almost all actions concerning per- sonal property, are transitory ; while those concern- ing real property are, generally, local ; all this being regulated by the statutes and practice of the different states. § 213. When and how questions of Jurisdiction can be raised. — Judicial proceedings may be classed as void, voidable and regular ; the important dis- 222 ELEMENTARY PRACTICE. § 214 tinction between tlie two former being that a void judgment may be successfully attacked collaterally, and can not be regarded as having any legal exist- ence in any court for any purpose ; while a voidable judgment can only be annulled or vacated in a direct proceeding, and until so vacated or reversed is ef- fective. Objections to jurisdiction can be made at any stage of the proceedings, and consent can not give juris- diction ; excepting that waiver is generally operative when there is jurisdiction of the general class of cases, although not of the particular subject. For example, if the action be of the local 9lass, and con- fined to the county where the land lies, the parties could consent to the action being instituted in another county, because the court there would have jurisdic- tion of that class of cases, although not of that par- ticular action, without that consent ; or, if one is sued in a court in which he is privileged from serv- ice, he could give jurisdiction over the action by con- sent, or by waiver of his privilege. § 214. Choosing the forum. — While the advocate can not always select the court in which he may try his case, he may often so frame his action as to de- termine whether it will be heard by a court alone, or by the court and jury. Thus, generally, a suit in equity is heard by the court alone, while an action at law is usually tried by the court and jury; the lat- ter being the judges of the facts. Where the law- yer has a choice of these forums, and he believes his client's interests will be better served by the court without a jury, he will so frame his pleadings as to bring the case within the equity jurisdiction. Thus, § 215 SELECTING THE REMEDY. 223 he may bring his bill in equity to enforce specific performance of a contract, rather than an action at law to recover damages for its breach. Again, in a suit at law he may be able to obtain the consent of his opponent to a submission of the cause to the court without a jury, or to a referee. In this he will be largely governed by the facts and surrounding circumstances of his cause, and by the situation of the parties. § 215. Court or jury? — In choosing the forum, and in deciding whether it is best to try the case be- fore a jury, some important consideration should have much weight. If the cause is one not so strong in its facts, but appeals to the sympathies of men, then he should insist upon a jury, as they are much more likely to be led by such considerations than would be a judge ; they are not so much bound by the stern sense of duty that will control the court alone, and will search for an excuse to let a party out of an ap- parently unfair position which the judge is not so likely to apply. Again, when damages are wanted they are likely to be much more liberally awarded by the jury than by the court. The latter rarely give indemnity in excess of that which is compensatory, while juries are apt to add punitive damages. Thus, the weak will fare better with the jury than will the strong. A woman will have a larger verdict at their hands than would a powerful corporation. The judgment of jurors on the facts is often better than that of the judges, for they come to the trial of a cause with fresh and unoccupied minds, and hear it with eager interest. Sir William Erie well said : "As for responsibility, a judge, being a permanent 224 ELEMENTARY PRACTICE. § 215 oflacer, especially a judge sitting alone, is more re- sponsible to public opinion than any individual jury- man, who is one of a body assembled only once and immediately dissolved. But I believe that the feel- ing of moral responsibility is much stronger in the case of the juryman, to whom the situation is new, whose attention is excited, who for the first time in his life is called upon to exercise public functions in the face of all his neighbors, than in that of a judge who is, perhaps, doing to-day what he has been doing every day for ten years before." The delays and want of impartiality of some judges are also to be considered ; the verdict of the jury is usually a prompt one, while the judgment of the court may be tardily rendered. There are also instances, rare it is hoped, of trial judges who are so influenced by particular advocates, or parties, as not only to fail in rendering just judgments in referred cases, butalso, for the purpose of preventing reversals, in granting fair, full and accurate bills of exceptions. All these things must be considered in coming to a conclusion on this important question. On the other hand, where the case is a strong one, although somewhat obscured in its facts, the cause is best heard by the judge alone, unless some coun- tervailing circumstance makes a different course ex- pedient. A judge will brush aside obscurities that would perplex jurors, and will trim down all imma- terial matter and go at once to the strong points. It is almost unnecessary to add that where counsel be- lieves that prejudice will exist against his client in the minds of the jury he will desire his cause to be heard by the judge without theip assistance. ^ 216 SELECTING THE REMEDY. 225 § 216. Change of Tcnue. — In connection with the question of choosing the forum, it is to be remem- bered that nearly all of the states have statutes pro- viding for a change of venue to another county in the same state, the foundation of this relief being that the party applying for it must show that he can not secure justice in the court where the action is pend- ing, either from want of impartiality of the court itself, or from public prejudice against him or his cause.' It is sometimes the only salvation of a just cause to secure its trial in a court removed from all prejudice and partiality. § 217. Choosing the forum ; state or federal courts? — The concurrent jurisdiction of the courts of the United States and of the several states is to be borne in mind by the lawyer. When the controversy is between citizens of different states, and the amount in controversy exceeds two thousand dollars, exclu- sive of costs and interest, or it is between an alien ^nd a citizen, the federal court has jurisdiction, and, if the advocate represent the plaintiff, he must con- sider the advantages of trying his cause in that court, rather than in that of the state. So, also, if he is employed by a defendant who has been sued in a state court, and the amount in controversy exceeds "the limit named, he must decide as to the advisa- bility of removing the cause to the federal court. Among the advantages to be considered are that the judges of the United States courts are appointed for life, instead of being elected, as is the case in nearly ^Post, Chapter XXIV, §254. 15 226 ELEMENTARY PRACTICE. § 218 all of the states, and thus he may secure a trial before a court removed from partisan prejudices, or likely to be influenced by popular or political reasons. The federal juries, too, may be more impartial be- tween the parties, from the fact that they are sum- moned from all parts of the district in which the cause proceeds, rather than from a single county of the state. The pleadings, practice and forms of procedure in the circuit courts of the United States, by act of con- gress, are made to conform to those prevailing in the state in which such court is held, and, hence, the lawyer will not be embarrased by a new and un- known procedure or practice.' It is to be remem- bered, however, that equitable defenses are not admissible in an action at law in a federal court, as they are in some of the state courts, and that reason may influence the choice in some cases. Other grounds for the jurisdiction of the federal courts, such as patent and admiralty causes, those arising under the national constitution, or under treaties or statutes of the United States, and the review of the decisions of state courts on constitu- tional grounds, are not within the province of this discussion, beyond this general reference to the juris- diction. § 218. Choosing the forum — Arbitration. — In addi- tion to the modes of trial before a court and jury, or by reference to the court without a jury, or to a referee, another means for settling a dispute is by a submission of the controversy to arbitration. Omit- • Ante, Chapter II, § 26. § 218 SELECTING THE REMEDY. 227 ting the cases where there may be a compulsory arbitration, or its mode is regulated by statute, we confine our attention to a voluntary arbitration, secured by an agreement of the parties to a dispute. An agreement by which the parties to a controv- ersy refer it to a designated person or persons is, usually, called a submission ; the person to whom it is referred, an arbitrator ; and the decision, an award. It is the general opinion and experience of the bar that an arbitration is usually an unsatisfac- tory mode of settling legal controversies, and, hence, most disputes are determined by a court and jury through the ordinary process of an action at law. Still, there are cases where an arbitration is both expedient and satisfactory. Thus, controversies involving long and complicated accounts, or where, to obtain a clear understanding, it would be neces- sary to refer to numerous documents, or make or explain long calculations, a more just and accurate conclusion might be arrived at by an arbitration than would be by a jury of twelve men. For such cases one arbitrator would be preferable to two or three, and that one should be a competent and skilled accountant. Again, when the case is a technical one, involving the knowledge and testi- mony of expert witnesses, views of the property in dispute, or tests of machinery, etc., in order that the facts may be comprehended, or when a controversy arises over the details and customs of some particu- lar trade or business, a decision more consonant with justice, and probably much more satisfactory to the parties, may be secured by an arbitration than by a jury. 228 ELEMENTARY PRACTICE. § 219 So, subjects of delicacy which ought not to be ex- posed to public investigation, like controversies be- tween near relatives, or intimate friends, who desire to avoid giving publicity to their disputes, should be referred to a private arbitration. There are causes, too, where the witnesses, like women, might be timid and dread the open court room, and whose evidence could be best secured, and more correctly given, in the comparative privacy of an arbitration. On the other hand, it is inexpedient to agree to a submission when it is necessary that the rules of evidence should be strictly followed and applied, or questions of law are involved requiring a judicial determination. All these considerations should have weight, and are to be taken into account in determining the ad- visability of removing a cause out of the usual course. § 219. Practice in snbmitting causes to arbitra- tion. — Any person of legal capacity to contract may, as a general rule, submit to arbitration, and, gener- ally, every claim in dispute, when it is not illegal, may be submitted. When an arbitration is agreed upon the term of submission should be distinctly stated in a written agreement, which should include the exact question to be submitted ; the names of the arbitrators, or the manner in which they are to be chosen ; the mode in which witnesses may be exam- ined, and the evidence presented ; who may be present at the arbitration, and when and where it is to be held ; the manner of disposition of the costs and expenses of the arbitration, and how and when the award shall be paid, including a settlement of the fact whether or not judgment may be entered on § 219 SELECTING THE REMEDY. 229 the award, as if by confession. Provision should also be made for the contingency of the death or re- fusal to act of an arbitrator, and the method by which the case may be compelled to proceed, if either party should refuse or neglect to attend the arbitration.' ' An excellent form of an agreement for submission is given in 2Chitty'B General Practice, 88. CHAPTER XXIII. PRECAUTIONARY MEASURES AND PRELIMINARY STEPS. § 220. Precautionary measures are needed to prevent litigation, or to assure its success. 221. Notice. 222. "Various preventive and precautionary notices. 223. Demand. 224. Instances where a demand is necessary or advisable. 225. Tender or offer to perform. 226. Special contracts requiring the performance of conditions precedent to actions at law. 227. Admissions of fact. 228. Notice before action. 229. Mr. Harris' suggestions for notice of an intended action. 230. Preliminary steps — Mr. Chitty's questions. § 220. Precautionary measures are needed to pre- vent litigation, or to assure its success. — Somewhat of that which is contained in this chapter has but little connection with the preparation of causes, or with procedure, but has to do with those precaution- ary measures which are needed by a client to save him from litigation, or to assist him if he is com- pelled to go to law to maintain his rights, or to suc- cessfully defend if he is summoned as a defendant in another's action. So far, then, as the matters here discussed are within the nature of preventive measures, they fall within the subject of the advice which the lawyer gives his client in his office ; but (230) § 221 PRECAUTIONARY MEASURES. 231 as this chapter treats of the precautionary steps lead- ing up to the successful prosecution or defense of an action of law, and which are closely allied with the duties of the advocate, they are all here properly in- cluded. Many a lawsuit could be avoided, and many suc- cessfully concluded, if clients would learn to seek the advice of their lawyers in their affairs, and, when obtained, to closely follow and be guided by their instructions. It is because such counsel is not sought, or, when secured, is not acted upon, that men are drawn into litigation which otherwise could be avoided. There are, also, certain preliminary steps to be taken before an action at law can be com- menced or brought to trial with an assurance of suc- cess, and some consideration of such needed pre- liminaries are given attention in this chapter. § 221. Notice. — Among the preventive measures by which a party may be saved from loss or injury, is that of giving certain kinds of notice, either pub- licly or privately. Equally valuable to secure pres- ent or future rights is such notice, for without it the client may fail in the litigation which he may later bring or defend. In this he needs the advice of his lawyer, both as to the necessity for the notice itself, as well as to the manner in which it should be pre- pared and given. Notice should always be in writing, and served upon the party to whom it is directed in such man- ner that proof of the service can be had when re- quired. It should contain such a true recital of facts, and with such accuracy that, when it is pro- duced in the course of subsequent litigation, it may 232 ELEMKNTAEY PRACTICE. § 222 prove to be favorable, rather than injurious, to the one in whose behalf it is given. If a statute pre- scribes the form of a notice, or the manner in which, or the time when it is to be given, the requirements of the statute should be strictly followed. § 222. Tarious preventive and precautionary no- tices. — While it is quite impossible to here name all the matters in which it is to be given, much less to give them any discussion, the suggestion of some of the instances in which notice is needed to prevent litigation, or to aid the client if required to- go to law, will be of advantage as illustrating the general necessity therefor. Public notices are required in these matters : of the dissolution of a copartnership, in order to save the future liability of a retiring partner ; forbidding the public to trust a wife, child, servant or former agent; of the loss of a negotiable note or bill by the holder ; by the maker of a negotiable instrument of failure of consideration, or of fraud in its issue ; warning off trespassers from private property, or from fish or game preserves ; of the ownership of personal prop- erty in the possession of others, particularly when left with the vendor ; and by executors and adminis- trators of the grant of letters upon the estates of de- cedents, and requiring creditors to present their claims. Notices of a more private form, and which are not necessarily required to be published, include those by a purchaser of personal property to one having its possession or custody, not being the vendor ; to the debtor, of an assignment of a debt or chose in action; by a trustee to tenants of real estate, to protect the § 223 PRECAUTIONARY MEASURES. 233 interests of his cestuis que trust; by a landlord to his tenant to quit ; of the readiness of a party to an agree- ment to perform a condition precedent therein con- tained ; of a loss by fire covered by a policy of in- surance, or of death in the case of a life policy, in both cases to be followed by formal proofs executed in the manner required by the terms of the policy ; of non-payment of bills or notes to hold an indorser ; to remove or cease a nuisance ; to a covenantor of title, or of indemnity, of an adverse claim, or of pro- ceedings by third parties ; by a stakeholder, of a de- mand or action by one of the claimants ; by a credi- tor to a surety, of goods or credits furnished the debtor ; to a guarantor, of the default of the prin- cipal ; by a material man, or workman, of articles of labor furnished a building, if required by statute to enable them to subsequently file a mechanic's lien ; to a municipal corporation, of a defect in a public street ; or by a municipality to one who has obstructed a street, of an action brought to recover injuries sus- tained by such obstruction. § 223. Demand. — Before an action can be com- menced, with any assurance of its successful deter- mination, the cause of action must be complete. While the main facts of a case must be secured, there are certain minor elements equally necessary to suc- cess, and, in providing for them, the assistance of the lawyer, as well as his advice, may be needed. Among these preliminary requirements, in addition to that of notice, which we have described in the two preceding sections, is that of a proper demand. This should be made so as to clearly indicate what is de- manded; it is to be made at the proper period, at a 234 ELEMENTARY PRACTICE. § 224 suitable time and place ; should permit of a reason- able time for performance, unless that period has been fixed by the contract of the parties, or has been determined by law; and must be made upon the party whose duty it is to perform the act or to do the thing required, or upon his duly authorized agent, attorney or representative. It is best that a demand should be made in writing, and proof of its service should always be forthcoming, as well as of the pre- cise form of the demand, which can be had by pre- serving a copy of the writing. § 224. Instances where a demand is necessary or advisable. — Among the various cases where a de- mand is of value, if not absolutely essential, the fol- lowing may be noted. For payment of a bill or note payable on demand ; of an account or debt, when necessary to mature it, or to secure interest from that time ; on a general promise to marry ; for an accounting from a partner, agent or trustee ; upon a bailee, or a person who may have lawfully acquired the possession of personal property, in order to estab- lish a conversion ; upon a tenant by sufferance, for the possession of real estate ; upon an infant, or per- son under disabilities, for the return of personal property, where an action would not otherwise lie to recover its value, and its retention after such notice would subject such person to an action for the recov- ery of the property, or of its value ; for a retraction of an alleged libel, or slander ; for goods, when, by the contract, they are payable in specie, so as to recover their value in case of refusal to deliver; in some cases, to support an action ex delicto; and for a deed, where the suit is to compel specific perform- § 225 PRECAUTIONARY MEASURES. 235 ance of a contract for the conveyance of real estate. In many cases the suit itself is a demand, and all that is required ; but, on the other hand, there are cases where a demand beyond that contained in the action is absolutely essential to a recovery. § 225. Tender or offer to perform. — The merits of a case, particularly for the defendant, are often materially assisted by a tender. The most common form is by a debtor to his creditor, where it must be made by the debtor himself, or by his agent, and to the creditor, or to one authorized to receive it. If the tender is made in goods it must be of the identi- cal articles required by the contract, or, of the same kind. If in money, it must be in gold or silver, or in money made legal tender by law. The tender should be unconditional ; a demand for a receipt in full, or for the surrender of a partic- ular document, as a condition precedent to the ten- der, usually rendering it void. It must be made at a proper time and place, and the money or article tendered should be produced, if feasible, or offered symbolically if of property not reasonably movable. "When a tender is made after a suit is brought, it must include the costs of the action to that time, and should be paid into court, and tenders must al- ways be kept good and ready to be produced when properly demanded. Full proof of a tender must al- ways be accessible ; to that end a memorandum of the time, place and words of the tender should be preserved, subscribed by the witnesses to the act. In addition to the tender by a debtor to his creditor, these instances can be noted: to secure a rescission of a contract, by putting the other 236 ELEMENTARY PRACTICE. § 226 party in the same position he was before it was made ; in an action for specific performance, to se- cure the benefit of the agreement, by a purchaser to the seller of real estate of the consideration with a demand for a conveyance ; in an action for breach of contract, as, for example, when one is hired for a determinate period, and is discharged before the end of the employment, an offer to serve during that term is essential ; and, always, when the contract itself requires a tender, as well as in all cases when an offer to perform is necessary to establish the rights of the party to successfully prosecute or defend an action. § 226. Special contracts requiring the performance of conditions precedent to actions at law. — In addi- tion to the cases where an offer to perform is neces- sary to complete the cause of action, there are special contracts which may require the performance of cer- tain conditions precedent before an action at law can be instituted, or which may contain stipulations for the adjustment and settlement of disputes without resort to the law. Of the former class a familiar in- stance is that of a fire insurance policy, requiring that the amount of the loss shall first be determined by arbitrators chosen by the parties, or by an umpire selected by those arbitrators, in case they can not agree. Or where in a building or construction con- tract a certificate of an architect or engineer is re- quired, in the first instance. Of the second class are cases where the contract may provide that all disputes shall be settled by ar- bitrators therein named, or to be chosen by the par- ties, and expressly providing that an action at law ^ 227 PRECAUTIONARY MEASURES. 237 can not be had between the parties concerning any disagreements arising out of the contract. While there is a decided conflict in the decisions of the ■courts touching the question whether parties, in ad- vance of any dispute, can completely oust the juris- diction of the courts, by requiring them to abide by the adjudication of another forum, and without dis- cussing that much mooted question, this general ref- erence is made to the subject to remind the reader that there may be certain preliminaries, of the nature to which we have referred, which must be disposed of before an action can be instituted, or perhaps, in lieu of that action. ' § 227. Admissions of fact. — It is often of value to obtain admissions of fact from an adverse party, and as often equally dangerous to make such admissions; but there are facts in a cause which can not be dis- puted, and to prove them would require unnecessary cost and expense, and, hence, it is frequently advis- able to make proper concessions, because if required to be proven, and the case should result adversely, costs might be incurred which otherwise could have been avoided ; nevertheless, unless the facts are clearly true, and can undoubtedly be proven, it is dangerous to admit them, and great caution should be used in making any concessions. When made the facts should be admitted only for the purpose of the cause in which they are conceded, and the stipulation should invariably be in writing. ' 1 Elliott's General Practice, 408, note 1, collates the cases showing the conflict of the authorities on the question of the power of the parties to a contract to oust the jurisdiction of the courts, in advance of any controversy. 238 ELEMENTARY PRACTICE. § 228 § 228. Notice before action. — The courteous attor- ney will not, generally, institute an action without giving the other side some notice of the intended suit. This does not refer to cases where the plaint- iff's rights might be injured by such a notice, or where the exigencies of the cause demand an imme- diate commencement of the action ; but, as a rule, where the lawyer is employed to conduct a litigation against his client's debtor, or against one who has injured him in person or property, some notice of the proposed action should first be given. Most men feel aggrieved if sued without, previous demand or notice from opposing counsel, and, hence, the courtesy which would suggest that notice ought not to be wanting. The demand should be couched in the language of politeness, nevertheless it should contain full notice that an action of law will be instituted if the matter is not adjusted within a time named. Care must be taken that the full amount of the plaintiff's claim is demanded, and that his rights are not thereby in- jured or lessened ; while, on the other hand, a demand for very much more than there is any possi- bility of recovering might work positive harm to the client. § 229. Mr. Harris' suggestions for notice of an intended action. — The remarks of Mr. Harris on this subject contain excellent suggestions. "He who goes to law goes on an unknown journey, and may come back worse than he started, a repentant and unpitied prodigal. There is one class of persons, however, who may issue this challenge with im- punity, and that is. those who have nothing to lose. § 229 PRECAUTIONARY MEASURES. 239 A penniless suitor and an unscrupulous lawyer may- scour the country with the Queen's writ in their hand, and levy blackmail to a surprising extent, if only they have skill enough to seem honest. They may destroy a character or break up a home by authority of this slip of parchment. * « * xhe Queen's writ, as an instrument of revenge or cupid- ity, belongs only to civilization. It is one of the penalties of social life, as well as one of its most admirable contrivances for our protection. "But now, if the opinion of which I have been speaking be one of encouragement, on which you are justified in proceeding, you will still have a care not to issue your writ until the way is cleared by the ordinary polite letter, framed with all the courtesy of one gentleman demanding satisfaction from an- other in the chivalrous days of old. This is the period of legal diplomacy. It is at this stage you present, not the pistol, but the olive branch. "There is much, indeed, in this letter when it is conceived in the spirit of meekness. On the other hand, I have seen this formal epistle stamp the pro- ceedings with a tone of distinguished high-handed- ness which the jury have marked with their sense of disapprobation. It has, in fact, lost the verdict. There is nothing more foolish than to put yourself in the wrong, and there is nothing more easy. But you may, if you exercise only a portion of the pru- dence with which nature has endowed most lawyers, put your opponent in the wrong by a judiciously- worded letter at this stage. ' ' I have noticed that those gentlemen who mean real business are invariably the most courteous in 240 ELEMENTARY PRACTICE. § 230 their mode of demanding (it looks like soliciting) their rights. There is no hurry, no clamor and no claptrap. It is the good, old English fashion of shaking hands before you fight ; ' If I should kill you it is not with malice aforethought.' "* § 230. Preliminary steps — Mr. Chitty's questions. In his valuable, although now almost obsolete, work, entitled General Practice, Mr. Chitty propounds a series of questions touching the course of a litigation, or preliminary to its inception, which, while some of the subjects to which he refers are discussed in other parts of this work, are properly included at this point, and will be found of value to the practi- tioner in the preparation of a cause and in its pro- cedure, as well as in advising his client upon the advisability of commencing an action, or of resisting that of another. Omitting some of the questions, as peculiarly ap- plicable to the English attorney or barrister, and slightly modifying some of the language so that it may conform more closely to the needs of the Ameri- can practitioner, this summary of Mr. Chitty's ques- tions may be given :' For the Plaintiff. 1st. What was the right affected ? Was it public or private ? or was it both ? If private, was it legal or equitable, vested in the party complaining, or in his trustee ? Absolute or relative ; in possession, ' Harris' Before and at Trial, 32-33. ' 1 Chitty's General Praetice, 436, note. § 230 PRECAUTIONARY MEASURES. 241 remainder, or reversion ? Depending on any and what contract, or without contract? 2d. "Was the injury private or public, civil or criminal, a tort or a breach of contract ? If the former, was it with or without force, immediate or consequential, a nonfeasance, misfeasance, or mal- feasance? 3d. What are the several remedies, whether by any and what prevention or removal of the expected in- jury by the party himself; or the interference of an inferior or superior tribunal ; or by enforcing spe- cific performance ; or compensation by some legal proceeding? 4th. "What, if any, precaution should be taken to prevent the possibility of even remote injury from, or litigation with any unknown party? 5th. Supposing an injury has been threatened or is expected from a particular individual, then is it necessary to take any and what preliminary steps, as to make a demand, before the commencement of any hostile measures? 6th. Can the injury be legally prevented or removed by any and what proceedings of the party complain- ing, or by any and what relation or agent, and with- out the intervention of any constituted authority ? 7th. Can the injury be prevented by application to any and what constituted authority, and by what proceedings? 8th. Suppose that the injury has been completed by some person, has it been barred by any and what statute of limitation, or any presumption of pay- ment, etc.? Is there any mode of preventing such 16 242 ELEilENTABY PRACTICE. § 230 bar ; and if not, then is there any criminal remedy for the same injury? 9th. Is there any and what mode of ascertaining who in particular was the wrong-doer, as by letter or bill of discovery? 10th. Is the complainant the proper party to as- sert the claim, or under any disability ; and is the wrong-doer liable to be proceeded against, or priv- ileged, or protected? 11th. Is it fit to accept an apology, or to compro- mise, or to give any and what indulgence, etc., with- out previous suit? 12th. Is any other step necessary before the com- mencement of legal proceedings, as giving notice, etc.? 13th. Can specific relief or performance be en- forced, either at law by mandamus, replevin, or summary proceeding ; or in equity, by bill for spe- cific performance? 14th. Is it compulsory or advisable to refer to ar- bitration, and on what terms? 15th. Is the complainant in possession of sufficient evidence to support his claim, and if not, how can he obtain it? If not, then how far should that circum- stance influence in the choice or abandonment of remedies? 16th. Before what tribunal, or what court, infe- rior or superior (federal or state), should the com- plaint be preferred? 17th. By and against whom, or in whose name, should the proceedings be carried on? 18th. What should be the first process, and should the wrong-doer be summoned, or taken on a capias? § 230 PRECAUTIONARY MEASURES. 243 19th. What are to be the pleadings or statements of the complainant's case, whether at law or in equity, and under what mode of procedure? Is any further statement of facts required for. preparing the pleadings? On Behalf of the Defendant. 1st. Has the proceeding been commenced in the proper court ; and if not, then can the defendant stop it by a plea to the jurisdiction, or otherwise ? 2d. If there be several claimants in adverse rights, should the defendant apply for an interpleader ; and under what procedure may he adopt that course ? 3d. Otherwise, what is the proper defense, plea, or answer to the complaint? 4th. What should be the subsequent pleadings and proceedings? For Beth Parties. 1st. What evidence should be adduced for the plaintiff and defendant? Must any of it be taken by depositions, or on commission ? Is a view neces- sary? 2d. What should be the conduct of the parties toward each other, and their relations touching the case, pending the litigation? 3d. What should be the verdict, judgment or de- cree, award or adjudication ? Whether specially or generally, and for any and what debt and damages. CHAPTER XXIV. BEINGING THE ACTION, PROCKSS AND PROCEDURE. § 231. The parties to the action. 232. The writ, or summons. 233. Service. 234. Auxiliary proceedings. 235. Attachment and garnishment. 236. Injunction. 237. Lis pendens. 238. Appearance. 239. The declaration, statement or complaint. 240. The art of pleading. 241. What is to be avoided in the declaration or complaint. 242. The defendant's plea, answer or demurrer. 243. Bills of particulars, and motions to make pleadings more definite. 244. The issue. 245. Depositions. 246. When secondary evidence of writings is permitted. 247. Compelling the production of documents. 248. Oyer or inspection of documents or books. 249. Inspection of persons and things. 250. Views by the jury. 251. The danger to the defendant in forcing a case to trial. 252. Dr. Warren's advice in this matter. 253. Continuance of the case. 254. Change of venue. 255. Subpoenaing the witnesses. 256. The jurors and the panel. 257. Dr. Warren's advice as to examining the panel. § 231. The parties to the action. — The forum chosen, the remedy selected, and the cause of action (244) § 231 BRINGING THE ACTION. 245 completed, the next question is to determine the proper parties to the action. It is not our purpose to enter into any extended discussion of this ques- tion, as it more properly belongs to text-books on that subject, but a few suggestions may be of value. Usu- ally, the parties are easily ascertained, but there are causes where the success of the action may depend upon the parties who are brought in, either as plaint- iffs or defendants. Where there is any election in this matter, the choice may be influenced by many circumstances, all of which are to be considered in reaching its conclusion. As a general rule, an action at law is to be brought in the name of the party in whom the legal right may be vested, but this is generally regulated by the statutes and practice of the several states. So, as regards the defendants, all the parties to a contract who are jointly bound should be joined, in order to save a plea in abatement for non-joinder or misjoinder. If the plaintiff or defendant is acting in a repre- sentative capacity he should be so named . If it is es- sential that the action shall be brought in the name of a party, other than the one beneficially interested, his written consent should be secured in the first instance; and this relates to actions brought by trustees, execu- tors, guardians, assignees for the benefit of creditors, and the like. There are also cases where a co-execu- tor, co-assignee, partner and others jointly interested, either personally, or in a representative capacity, should be joined. Again, where the person in whose interest the ac- tion to be instituted is not sui juris, or is under dis- abilities, such as infants, persons non compos, and, 246 ELEMENTARY PRACTICE. § 232 in some states, married women, the plaintiff must either sue in another name, or join another with him. In some actions, and in some states, it is also neces- sary that the plaintiff should sue in the name of the commonwealth, or the state, or the people, as the case may be. In all jurisdictions, it can safely be asserted, the statutes of amendment are so broad and liberal that a misjoinder or non-joinder of plaintiffs, or an omis- sion of a proper party plaintiff, or a misjoinder of defendants, or an error in giving the correct name or title of any of the parties, can easily be remedied ; subject, however, to such an imposition of costs, or of terms, as the statute or practice may provide. §232. The writ, or summons. — The process whereby the defendant is brought into court varies in the several states. In some of them where the common law practice still prevails, e. g., Pennsyl- vania, the plaintiff, or his attorney, signs a praecipe or order to the prothonotary, or clerk of the court, directing that a writ be issued to the sheriff of the county, commanding him to summon the defendant to appear on a day named in the writ to answer the plaintiff of his plea in assumpsit, or trespass, or as the case may be. In states where a code of proced- ure has been adopted the summons may be issued by the attorney for the plaintiff, or his representative. In all jurisdictions, no matter how differing may be the process, the essential requirements are that the writ, summons or notice must be issued and served in the manner provided by law ; without which the defendant is not in court and the process is void. Other requisites are that the writ or sum- § 233 BRINGING THE ACTION. 247 mons should name the court in which the action is brought ; the party plaintiff, and the day when the defendant is required to appear ; and, when issued by an official of the court, that it should be properly signed and tested, with the seal of the court attached. § 233. Serrice. — The three forms of service, gen- erally applicable to all process, are these : personal, by reading the original to the defendant and giving him a copy, or by showing him the original and de- livering a copy ; by leaving a copy with an adult member of his family at his residence ; or, by publi- cation ; all these modes of service being regulated by statute, which must be strictly followed. It is also necessary that there should be a return of service ; and with an affidavit thereof, if the law so prescribes. In this connection, the privilege of certain persons, or under certain conditions, from service of process is to be considered. In earlier days a capias ad re- spondendum could be issued in many cases, but, since the general abolishment of imprisonment for debt, that process is now more rarely used. In some of the states a capias can still issue in certain actions, as against fraudulent debtors, and in some actions of tort, such as libel, slander, etc.; all of which is regulated by statute. Where such process may issue, an affidavit and, usually, a bond are required from the plaintiff. § 284. Auxiliary proceedings. — It is of frequent occurrence that more than a summons is necessary to effectively secure the plaintiff's rights. If the de- fendant is a non-resident, or is fraudulently remov- ing his property, it may be, necessary to place it in custodia legis by attachment ; or it may require an 248 ELEMENTARY PRACTICE. § 235 injunction to restrain the defendant from doing some act which would prevent the plaintiff from obtain- ing redress in an action at law ; or it may be neces- sary to give notice of the pendency of the action to preserve the plaintiff's rights as against third parties. These proceedings are of a nature ancillary to the main action, and involve processes distinct from, or auxiliary to, that action. § 235. Attachment and garnishment. — An attach- ment is a statutory remedy, and must strictly follow the requirements of the statutes. The practice in this differs in the several states, but the general pro- cess is the taking into custody of the law the debtor's real or personal property, to secure the interests of the creditor pending the determination of the cause. It is largely a proceeding in rem, but may, under certain conditions, like the entry of bail by the de- fendant, become an action in personam. An almost universal requirement for an attachment is an affida- vit of the existence of the statutory ground, and, gen- erally, a bond from the plaintiff. A garnishment is a process of a nature similar to an attachment, and is a taking of the property of the defendant in the hands of a stranger, or securing debts due from a third person to the debtor of the attaching creditor. § 236. Injunction. — While an injunction is not, strictly speaking, an auxiliary proceeding, there are cases where it is of important value in assisting the chief action, and is an extraordinary remedy of great power. In the jurisdictions where the two systems of law and equity are separated, the remedy by in- junction is much less an auxiliary process ; but in the code states the relief sought by injunction maybe ob- § 237 BEINGING THE ACTION. 249 tained in the main action. The true test of the right to an equitable remedy seems to be whether it is necessary to secure rights which can not be had in an action at law; or, more broadly, whether the legal remedy equals, in its essential elements, the equitable one. The primary grounds for an injunction seem to be that the complainant has made a clear and strong case entitling him to its assistance, and that his ap- plication therefor is supported by proper affidavits, and, usually, will not be granted except upon suffi- cient bond given by the complainant. § 237. Lis pendens. — In many of the states cer- tain actions are accompanied by a Us pendens notice. This applies to cases where property, real or per- sonal, is directly involved in the litigation, and does not apply to actions purely in personam, where the only relief to be obtained is a judgment for a money recovery. Under the older common law and equity proceedings, the filing of a declaration, or complaint, containing a sufficient description of the property, together with proper service and return, is notice to subsequent purchasers. Such was the rule, and still is, in some of the states, in actions of ejectment. But in many of the states this is not enough in certain actions, for the pleadings must be supple- mented by written notice, registered or recorded in the proper office. This lis pendens 'aotice is regulated in those jurisdictions by statute, and its requirements must be strictly followed. The essential part of the notice is a proper and sufficient description of the property to which the action directly relates. § 238. Appearance. — It is advisable that the law- yer should have from his client a warrant of attor- 250 ELEMENTARY PEACTICE. § 239 ney, or authority to appear in a cause. His right to so appear will be presumed ; still, the contrary may be shown. His commencement of the action is in itself an appearance by the plaintiff's counsel ; but that of the attorney for the defendant should be formally entered of record ; although it is generally held that taking any part in the cause, such as filing an answer, or a demurrer, or a motion, or appearing at the trial, or an appeal for a party, is equivalent to a formal appearance. It is sometimes useful to enter a special appearance, which is qualified or limited, and is made for a spe- cial purpose, rather than a general appearance, which may waive all defects and irregularities in the pro- cess or service, and gives jurisdiction over the party for whom the attorney may thus generally appear, and is held to be equivalent to personal service. The special appearance does not waive jurisdiction of the person, and defects or irregularities in the process, and is usually had to take advantage of those de- fenses. Such an appearance should be carefully guarded, and must be made in accordance with the rules of practice of the court wherein it is entered. § 239. The declaration, statement or complaint. — Now, probably, in all the states, the more modern form of pleadings prevails with regard to the declara- tion, statement or complaint ; the old system of spe- cial pleadings having become obsolete, or having been abolished. In more ancient days pleading was a great art, and required such nicety of language, and such particularity in the formal statements, that many a cause was lost for want of some purely formal mat- ter ; but, in these days, the reforms in legal proced- § 240 BRINGING THE ACTION. 251 ure have materially altered the old rules of pleading, and greatly simplified the labors of the lawyer in that direction. The famous work of Mr. Chijty on plead- ings has become less and less useful, until, now, it is rarely used. An examination of its many forms at once gives an idea of what was required of the lawyer of those days. So, again, the statutes of amendments have greatly assisted the furtherance of justice, and that which at one time would have been a fatal defect in the plead- ings is now almost universally subject to be amended, and the faults therein remedied without serious loss. However, fear has been expressed that this laxity in the rules of pleading, under the modern practice, may tend too much to slovenly and careless habits, and lead to the injury of the defendant, by not re- quiring the plaintiff to disclose that to which the de- fendant is entitled, a full knowledge of the grounds upon which the action is founded, with an oppor- tunity to prepare and present his full defense. § 240. The art of pleading. — While pleading has lost many of its technicalities, it still retains that for which it has ever been distinguished, the elements of pure logic. The purpose of the declaration, or com- plaint, as well as its requirement, is a statement of the plaintiff's claim made in so clear and distinct a manner that the court can readily see that the defend- ant has done him a legal injury, if the facts therein stated are verified, and the law gives him therefor a remedy and redress. This statement should not only be clear, but it should be concise ; excluding all for- eign and extraneous matter, and confined to the cause of the action it sets forth. 252 ELEMENTARY PRACTICE. § 241 It is wise to state the case in a chronological order, giving the facts in the order of their occurrence, and logically following them to their conclusion. Dates, amounts and material forms of expression should be given in such precise language as to avoid any variance between the pleadings and the proof. If a copy of any document is included in the plead- ings it should be correctly given. Here accuracy is a cardinal virtue, and a want of it may subject the client to unnecessary costs and inconvenience. It is unwise for the plaintiff to state more of his case than is necessary, because he may thereby be led into admissions dangerous to his success, or may inform his adversary of more than is required from him. Thus, in actions on accounts, particularly if there is any doubt or difficulty regarding the items of credit, it is often best, if not forbidden by the practice or by statute, to state the debit side only, leaving the de- fendant to prove his credits. § 241. What is to be avoided in the declaration or complaint. — The things to be avoided by the law- yer in drawing his declaration, statement or com- plaint, are these ; an admission which may prove fatal or injurious to his client ; a variance between the pleadings and proof ; and the possibility of a successful demurrer. If the latter goes to the very root of the case he may not be able to draw his plead- ings without subjecting him to a demurrer ; but, usually, it can be so framed that it can be avoided. ' The declaration or complaint should be honestly stated. By this is meant that it should be based on substantial facts, and the amount claimed not very greatly in excess of that which can be proven. If § 242 BRINGING THE ACTION. 253 the evidence falls very far short of the damages or value claimed in the pleadings, the jury may look with distrust upon the plaintiff, and be led to believe that his demand is not entirely honest, and so mete out to him but scant favor. Mr. Harris' advice in this particular is worth fol- lowing. "Asking an unreasonable amount of dam- ages is a sure way of throwing discredit on your claim. Tact rules the world, and nothing shows a greater want of it than to begin an action with an exaggerated demand. To excuse yourself by saying it is a matter of form only intensifies the blunder. There can be no mere form in a statement of damage ; it is either honest or false, and the apparent honesty or the apparent dishonesty will guide the intelligence and verdict of the jury. Of course, one has known this mistake to be overcome, and damages obtained proportionate to the injury ; but the solicitor who starts with the burden of a false claim, or of ex- aggerated damages, has need of all the tact and inge- nuity which characterize the most skillful and per- suasive advocate, in order to pull his client through the difiiculty. "The less form and the more reality the better. The best actor is not the man who acts most, but the one who acts least ; and the best advocate is not the man who is, but who looks most real ; but he'll need all his looks if his claim is a fraudulent unreality.'" § 242. The defendant's plea, answer or demurrer. — When called upon to reply to the plaintiff's cause of action, as set forth in the declaration or complaint, ^ Harris Before and at Trial, 35. 254 ELEMENTARY PRACTICE. § 242 or, perhaps, earlier in the action, the defendant ofteu has a variety of courses to pursue, among which he may have more than one choice, and may follow one, and afterwards take another. While this is not the place for any lengthy discussion of defenses, or of the means which the defendant may have to bring the case to an end, a few suggestions to his attorney are now offered. He may take into consideration one or more of the following questions in defending his client First. Is the process, service, etc., defective on its face ? If so, the ordinary mode is to enter a special appearance, if allowable, (in some courts known as an appearance de bene esse) and move to quash the writ or to set aside the service or return. Such objec- tions should specifically point out the defects com- plained of. Second. Is the process defective for want of some- thing not appearing on its face ? For example, non- joinder or misjoinder. If so, a plea in abatement will raise the question, which is always founded upon affidavit. Third. Is the person served privileged or exempt from service of process ? If so, a motion to set aside the service is proper. This would apply, for example, to the case of a suitor or witness served while in at- tendance at court, or within the reasonable time allowed him in going to or returning from the trial, or to a service obtained by fraud. Fourth. Admitting the facts set forth in the plaint- iff's declaration, statement or complaint, does the law give him a remedy ; or is he entitled to one in that action ? If not, a demurrer is in order. But § 242 BRINGING THE ACTION. 255 the defendant should think twice before taking this step, as he may subject himself to a judgment for the amount in controversy (so, possibly, in some jurisdictions) or, at least, make himself liable for costs if unsuccessful. In addition, by a demurrer he makes known to his adversary, his legal positions, warns him against the argument at the trial of the cause, and thereby forearms his antagonist. A de- murrer may, sometimes, quickly end a case, but it is a dangerous weapon, and may prove to be a two- edged sword in the hands of the defendant. It cer- tainly should not be resorted to except in cases where the defendant feels confideiit of sustaining it. Fifth. Is the declaration, statement or complaint sufl&ciently definite, or particularized, to enable the defendant to properly answer or plead? If not, the defendant should follow a practice prevailing, it is believed, in all the states, and compel the plaintiff to furnish a bill of particulars of his claim or cause of action, or make his complaint more certain and specific.^ Sixth. All other preliminary pleadings and motions disposed of, there remains the answer, or plea, to the plaintiff's complaint or declaration. While in some courts, and in certain cases, short pleas are still used by the defendant, under the practice of all the states a process can usually be had whereby the defendant may be compelled to disclose his defense. Whether this is by formal sworn answer to the complaint, or by an affidavit of defense to the plaintiff's statement, or even by short pleas under the old common law ' Infra, § 243. 256 ELEMENTARY PRACTICE. § 243 practice, the result is approximately the same. All this is so regulated by the practice of the sefveral states as to be impossible of any extended discussion here. The tendency of the modern practice of the law is to compel the defendant to fully set forth the ground of his defense, as well as to require the plaint- iff to define his cause of action, in order that both parties may have an opportunity to know the issues which are to be tried without the surprise of a new defense or claim when the issues are brought up for adjudication. § 243. Bills of particnlars and motions to make pleadings more definite. — As we have said in the pre- ceding section, the trend of the modern practice is to compel the parties to an action to fully set forth the grounds of their action or defenses. In some juris- dictions, this is secured by a rule for a bill of par- ticulars where the pleadings are in general terms, and in others by a motion to make the complaint or answer more certain and specific. As a general rule, the parties are confined to these bills of particulars in the production of the proofs, although they are amendable as are all pleadings. Their value to the defendant, in preparing his answer, and to the plaintiff, in securing a definite defense from his adversary, are apparent, and should always be required when deemed necessary to a proper un- derstanding of the case. They are often of use to the defendant in speedily bringing the plaintiff's case to an end, as it sometimes happens that the plaintiff's action is based upon such uncertain grounds that it can not stand the test of this rule or motion. Under the practice of some jurisdictions, it may § 244 BEINGmG THE ACTION. 257 be needful for the defendant to obtain a stay of pro- ceedings during the pendency of his application for a more specific declaration or complaint, in order that he may not lose his opportunity to plead to the merits of the cause. Allied with this subject, and to be remembered, is the right to oyer of an instrument upon which suit is brought, and also to its inspection. This may sometimes be vitally important to the party demand- ing it, as we shall see in a succeeding section discus- sing this matter more at length.^ § 244. The issne. — The pleadings of the parties to a cause will disclose the issues to be tried, and must, therefore, be carefully examined, and then compared together to precisely determine the questions at issue. When the answer or defense has been made to the declaration or complaint, the allegations of the plaint- iff, as replied to by the defendant, can be put into three classes : 1st. Those which are admitted. 2d. Those which are neither admitted nor denied. 3d. Those which are denied. As for those admitted, the plaintiff must determine the extent of the admission, and how far they tend to support the main issues. So, as to the allegations which are neither admitted nor denied, as well as those positively denied, it is necessary to note how far the answer goes, and what proof is necessary to verify them. In short, the pleadings should be care- fully digested, so that from them the issues raised may 1 Infra, § 248. 17 258 ELEMENTARY PRACTICE. § 245 be clearly understood, and made ready to be pointed out at the trial. On the one hand, the plaintiff must be prepared to prove the allegations not admitted by the defendant by proof in accordance with those allegations, as well as to deny the affirmative answers of the defendant by that or other proof. The latter must be prepared to bring evidence in denial of the plaintiff's allega- tions, not admitted by him, if material to the action, and equally ready to prove all the affirmative aver- ments of his defense, and as he has averred them. In other words, the proof should conform to the alle- gations, and to properly do this the issues must be thoroughly understood. The real issues of a cause are not always clearly apparent from the pleadings, but to accurately ascertain them, and to know dis- tinctly what is to be tried, is the positive duty of the advocate. This knowledge should be secured long before the case comes into court, for ignorance of the real questions at issue is almost certain to lead to de- feat. § 245. Depositions. — It is very certain that the oral evidence of a witness in a trial of issues of fact before a jury is much to be preferred to his written depositions. Seeing the witness and noting his manner is much more telling with the jury than the effect produced upon them by merely reading his evidence from a deposition ; it goes deeper into their minds, and remains more firmly fixed in their mem- ories. Again, the witness himself will more readily remember and suggest matters of importance when in the court room, where his mental powers are excited by a contest in which he can hardly fail to § 246 BRINGING THE ACTION. 259 have some interest, than when he gives his evidence in the quiet of an examination by deposition. It is only when the attendance of a witness can not be secured at trial that his testimony should be taken in this way. Frequently, owing to the absence or infirmity of a witness, this course is necessary, and, under some circumstances, it may be required to be done by formal interrogatories. These inter- rogatories should be prepared by the counsel who is most familiar with the issues of the case, and, when the testimony is taken by deposition, the attorney should be present and conduct the examination, rather than to delegate it to others not so well ac- quainted with the cause and its issues. The rules governing the taking and return of depositions, and of commissions or interrogatories, and prevailing in the jurisdiction where the cause is to be tried, must be strictly followed, and the counsel for the party against whom they are taken should be prepared to introduce his objections to any violation of those rules at the time, and in the manner, required by the prac- tice of his courts. § 246. When secondary evidence of writings is permitted. — It is a well-known rule that the best evidence which can be secured must be presented, and that this primary evidence must be produced, or its absence accounted for, before secondary or in- ferior evidence will be permitted. If original docu- ments have been in the possession of the party desiring to offer them, and copies or oral evidence of their contents are to be given in their place, it is in- cumbent upon him to first lay the ground for their admission, by showing that diligent search has been 260 ELEMENTARY PRACTICE. § 247 made for the originals, and that they can not be found, or that they have been destroyed. There are these exceptions, among others of minor note, to the rule requiring the production of the original in- struments: 1. A public officer need not produce the certificate of his election or appointment. 2. Certified copies of public records are admissi- ble in the place of the originals, when the law authorizes such instruments to be recorded and the record preserved. 3. Where only a calculation of an intricate or voluminous account is needed, a qualified witness may make such a computation, and testify thereto. 4. Inscriptions on immovables, such as on walls, buildings or tombstones, may be proved by oral evi- dence. 5. Where writings are not within the jurisdiction of the court, and can not be reached by its process, parol evidence of their contents is admissible. 6. Where their production is made impossible by reason of their loss or destruction secondary proof can be introduced. 7. Or when the opposite party has them in his possession, and fails to produce them after due notice. 8. And where they are in the hands of a stranger, who can not be compelled by the process of the court to produce them and declines to do so upon proper demand. § 247. Compelling the production of documents. — There are three ways to compel the production of writings when in the possession of the adversary, or of persons amenable to the process of the court: § 248 BRINGING THE ACTION. 261 i. By notice to the other party or his attorney of record. 2. By order of court, on proper petition and cause shown. 3. By subpoena duces tecum. The notice to produce such documents should be served upon the party, or his attorney of record, within a reasonable time before the trial ; it should reasonably describe what is demanded to be pro- duced ; it should be in writing ; and its service must be always ready to be proven. § 248. Oyer or inspection of documents or books. — ^There are cases where it is important to secure an inspection of the books or documents of the oppos- ing party, and forming part of the evidence in the cause, before the case is tried. The advocate may thus be enabled to discover alterations, interlineations or forgeries, of importance to his cause, and, perhaps, essential to its proper trial. In fact, a case has been thoroughly prepared only when counsel has had an inspection of all the documents which will be introduced in evidence by both parties. His client may not have, duplicates of these documents, and when it is important that they should be seen, as it usually is, a course should be adopted to secure that inspection. This is regulated by the local practice, but, generally, and upon cause shown by proper pe- tition, the court will compel the other party to per- mit an inspection of such documents as are essential to the preparation or evidence of the case. The w.is- dom of permitting the adversary to see such papers, without being forced to produce them under an order of court, is at once apparent, as a refusal of the right 262 ELEMENTARY PRACTICE. § 249 to such an inspection might be severely commented upon at trial, and, possibly, prove detrimental to the party withholding them. § 249. Inspection of persons and things. — ^There are cases where it is important that an inspection should be secured before trial of persons or things. Thus, in an action for personal injuries, the plaintiff may be compelled to submit himself to an examina- tion by physicians or surgeons, employed by the de- fendant, to ascertain the extent of the injuries. The rulings of the courts upon the question of the right of a party to compel such an inspection are far from uniform-. In the absence of a statute upon the subject, it has been denied in some jurisdictions, and permitted in others.' § 250. Views by the jury. — In some of the states a process has been provided for a view by a jury, be- fore the trial", and struck for that purpose, of places or things connected with the issues to be tried. This practice is regulated by statute, and its provisions must be closely followed. How far this course may be of value to the parties is problematical. While the object of a view is to enable the jury to understand the evidence, and to properly apply it, it is not in- tended that new evidence should thereby be collected by them. This, however, is just what they may se- cure, and the ideas and information so gained by them may be prejudicial to a proper verdict in the cause. The dangers to which a case may be thus subjected have been pointed outin aleading decision. "In au- ' See cases on this subject collated in 2 Elliott's General Prac- tice, §§ 683-684, notes. § 251 BRINGING THE ACTION. 263 thorizing the court to send the jury to view the prem- ises in litigation, it was not the purpose of the stat- ute to convert the jurors into silent witnesses, acting on their own inspection of the. land, but only to en- able them naore clearly to understand and apply the evidence. If the rule was otherwise, the jury might base its verdict wholly on its own inspection of premises, regardless of an overwhelming weighit of evidence to the contrary, and the losing party would be without remedy by a motion for a new trial. It would be impossible to determine how much weight was due to the inspection by the jury, as contrasted with the opposing evidence, or (treating the inspec- tion as in the nature of evidence) whether it was sufficient to raise a substantial conflict in the evi- dence. The cause would be determined, not upon evidence given in court, to be discussed by counsel and considered by the court in deciding a motion for a new trial, but upon the opinions of the jurors, founded upon a personal inspection, the value or the accuracy of which there would be no method of as- certaining. The statute could not have been intended to produce such results as these.'" § 251. The danger to the defendant in forcing a case to trial. — There is no doubt of the wisdom of the plaintiff in bringing a case to trial after it has been prepared, but it is equally certain that the de- fendant should use caution in this matter. It may be that he will have a verdict against him in a cause which he has hurried forward, while if he had let it alone it might have died a natural death. The writer 1 Wright V. Carpenter, 49 Cal. 607, 609. 264 ELEMENTARY PRACTICE. § 252 remembers, only too vividly, a sad experience he suf- fered in the days of his novitiate. A defendant had obtained his services in an old case, which, although he felt sure of success, it is doubtful if the plaintiff or his counsel had not practically abandoned. With the enthusiasm of youth he ruled the plaintiff to de- clare, and thus brought the case to trial, which re- sulted in a verdict for the plaintiff for about $1,200. Smarting under what he considered to be a gross mis- carriage of justice, the youthful attorney sought and obtained a new trial. Its result was still less com- forting, as it gave a verdict against the client for more than $1,700. Since that time that lawyer has hung up in his mind, well-framed by experience, the motto, "Let sleeping dogs lie." § 252. Br. Warren's advice in this matter. — Dr. Warren gives some excellent advice on this subject: " Beware, when concerned for the defendant, how you force on a reluctant plaintiff. It is almost pro- verbial that a defendant, by doing so, only helps on a plaintiff to a verdict which he would not otherwise obtain, and has become afraid of even asking for. I have known between twenty and thirty instances of this in my own practice ; not that I ever advised it, for I almost invariably discountenanced it, as, I ap- prehend, does every practitioner of even only mode- rate prudence and experience. In a case of this sort, before that great lawyer and eminent judge, Lord Tenterden, as soon as it had been intimated to him, on the plaintiff's obtaining a verdict, that he had been ruled on by the defendant, his lordship leaned down to the defendant's attorney, who was sitting with a rueful countenance beneath, and whispered: § 253 BEINGING THE ACTION. 265 ' So they tell me you ruled on the plaintiff? "Well, you will know better another time. You are but a young man ; and I will tell you, that when young at the bar, I, too, once advised a client as foolishly as you have advised yours, but I never did so again. Nor do you.' There certainly does seem a fatality about these cases. I own, however, that there are occasions on which you are forced to take this step ; when the case is really clear beyond all possible doubt, or you are concerned in winding up affairs which can not remain unsettled through actions pending. Under such circumstances, you must needs take your chance."' § 253. Continuance of the case. — While a party should always be ready at the appointed time to try his cause, and, as a general rule, it is bad policy to ask many continuances, it is true that there are cases when such a course is advisable. Such, for example, is the continuance of a criminal prosecution secured on behalf of a defendant, when the crime has aroused indignation, and there is a public clamor for convic- tion. A delay in such cases may secure a fairer trial and better justice for the accused. In civil cases it may be needed when a new or ad- ditional cause of action or defense has been added, without time for proper preparation, or a material witness is absent, and due diligence has been used to secure his attendance, and for other causes which may be the proper subject for continuance. The time for such an application, and the manner in which it is to be made, are, generally, controlled by the rules 1 "Warren's Duties of Attornes'S, 197. 266 ELBMKNTAEY PRACTICE. § 254 or practice of the forum, and are usually within the discretion of the court, and subject to reasonable con- ditions, such as payment of costs, or the like. § 254. Change of Tenue. — In nearly all the states there are statutes prescribing a change of venue, whereby the cause may be tried in another county. Among the grounds for this relief are these : preju- dice of the citizens, where the venue is laid, prevent- ing a fair and impartial trial ; the convenience of witnesses, or the fact that the county itself is a party. In certain instances, the granting or refusal of a change of venue is within the discretion of the trial judge, but some statutes afford grounds for this trans- fer of the case which can be enforced by mandamus, but, in other jurisdictions, have been held to be re- viewable only on appeal. In all cases the provisions of the statutes must be strictly observed. It is also generally provided by statute that a re- moval of the cause may be had from the jurisdiction of the judge assigned to hear it where there is proof, or, sometimes, mere allegation, of his unjust bias or prejudice ; or where he is of near relationship to one of the parties ; or has been of counsel in the cause ; or is a material witness. § 255. Subpoenaing the witnesses. — ^The witnesses should always be subpoenaed, and not depended upon to appear by their promises alone. The subpoena should give them timely notice of the date and place of trial, and should be regularly served, unless serv- ice has been accepted. It is also wise to include in the subpoena both the names and residences of the witnesses that they may be readily found when re- quired. In order to enforce their attendance, the § 256 BRINGING THE ACTION. 267 legal fees and the expenses given the witnesses by- statute should be tendered. Subpoenas are necessary to secure an attachnlent to compel the attendance of witnesses, as well as to obtain a continuance of the cause for their un- avoidable absence. In the latter case, it is usually necessary for the party moving for the continuance to show that the witness has been subpoenaed, that he is material and necessary to his cause, and, if he is detained by sickness, or other good cause, that there has been no opportunity to take his depositions, accompanied, in the instance named, by the affida- vit or certificate of his physician that illness prevents his attendance. § 256. The jurors and the panel. — Before trial the counsel should go over the panel of jurors by whom his case is to be tried, and ascertain who should be challenged, and whether peremptorily, or for cause. In this he needs his client's assistance, and should learn from him who would be likely to be prejudiced against him or his case. This work should not be left to the hour when the jury is called into the box, but should be done beforehand. There are many cases where there has been a total miscarriage of justice owing to the unjust prejudice of the jurors against the losing party, or vice versa. Much of this can be avoided if counsel would give some attention to the panel before the case is called. It may be necessary to go into an extended inquiry into the characteristics and connections of the jurors, but often that labor is well rewarded by the final success, which could not otherwise have been secured. The writer has in mind his experience in a cause 268 ELEMENTARY PRACTICE. § 257 tried in a federal court, where nearly all the jurors were unknown to him or to his client. Fearing a prejudice against his client, by reason of his race, he made a thorough investigation into the character and business of the members of the panel, and found several whose prejudices would have been fatal to success had they been permitted to sit in the cause, and was thus enabled to properly challenge when the jury was called into the box. § 257. Br. Warren's advice as to examining tlie panel. — Dr. Warren thus refers to this subject: "Look sharply after your jury panel. Otherwise you may have, as one of your judges, one whom no evidence, no arguments, would persuade to give your client a verdict ; one who may be his personal en- emy, or the friend, or relation, of your opponent ; or may belong to some trade, profession, or calling, which would be injuriously affected by your success; or enjoy rights in respect of property situated simi- larly with that which you seek to affect with liability. One of the present chief justices, a man of great ex- perience, consummate prudence, and singular success in the conduct of causes, when at the bar, gave me a hint of this kind in the very first cause in which I ever held a brief with him. 'Observe,' said he, ' what I am going to do, and do you the same when your turn comes. I am going to look at the jury panel, that I may quietly get rid of some obnox- ious jurymen. Here our opponent is a publican, and the case is one in which all publicans are likely to feel a strong bias in his favor. Now, peradventure, there is a publican in the jury-box — but perhaps our client has already seen to this.' That gentleman, § 257 BRINGING THE ACTION. 269 however, on being asked, acknowledged that ' he had not thought of it' ; on which my leader, in a whis- per to the usher, told him to get the jury panel from the officer ; and, on looking over it, sure enough, there were two publicans quietly ensconced in the box, having, doubtless, had a hint from our oppo- nent to be in attendance when the cause was called on. If this has been the case, however, the trick failed ; for the two obnoxious gentlemen were quietly invited to retire — not knowing at whose instance — and their places were immediately filled by others, who appeared indifferent to either party. The gentleman to whom I am referring attached such importance to this precaution, and said that he had seen so many instances of mischief arising from a neglect of it, that he told me he thought an attorney who disre- garded it guilt}' of crassa negligentia. Only the other day I saw at Guildhall, the brother of the de- fendant upon the jury. And a friend, to whom I this morning, in court, mentioned this circumstance, as one of which I intended to bring before you, as- sured me that he himself almost fancied that he recollected, some years before, seeing the plaintiff sneaking into the jury-box.'" ' Warren's Duties of Attorneys 192. PART IV. THE TRIAL OF CAUSES. CHAPTER XXV. THE ORDER OP THE TRIAL. § 258. The eve of trial. 259. Compromises often oSered at this time. 260. The situation of those about to take part in a trial. 261. The order in which a case is tried. § 258. The eye of trial. — His cause thoroughly prepared, both in law and fact, his witnesses sub- poenaed, and everything in readiness for the battle, the lawyer at the eve of trial, particularly if he is a beginner, is in a situation where every nerve is strained, and every thought turned upon the chances of his success, and the means he has to secure it. If there is any period in his practice when he needs to summon to his help his full powers of self-possession and courage, it is just at this time. When the cause is partly under way, and he is well in the saddle, much of this timidity and nervousness will disappear, but now, just as he is about to sit down to try his case, he feels a trepidation and suffers an agitation which are far from pleasant. As he grows more experienced he will be relieved of much of this, still, he is always likely to feel himself subject to some of this strain at the hour his cause is about to begin. (271) 272 ELEMENTARY PRACTICE. § 259 § 259. Compromises often offered at this time.— This is the time when a compromise is often offered, but certain is it that the situation the lawyer is then in should not be permitted to have any influence upon his judgment in that matter. It is far better to have settled in his mind, and with his client, at the period of the preparation, when his faculties are under a less tension and he is more composed, what terms of settlement would be accepted, and to now abide by that determination, rather than to trust to the feelings that are apt to agitate him on the eve of trial. A cunning antagonist, shrewdly guessing that the young lawyer opposed to him is now fright- ened and nervous, will sometimes approach him with an offer of compromise much different from the terms he is willing to make, trusting to the situation of the youthful practitioner to obtain this favorable settlement. It is now that the novitiate needs to have control of himself, and must not permit his timidity, or the novelty and difficulties of his situa- tion, to control his judgment. § 260. The situation of those about to take part in a trial. — Mr. Chitty has described, almost dra- matically, the situation of all the parties connected with the trial of a cause, just as it is called to be heard. "There is not perhaps any scene in life, which, though of daily occurrence, excites so many various interests and talents as a contested trial at law. The parties, their attorneys and witnesses, the ,^ counsel, the jurors, and even the learned judge, (though in very different degrees, and influenced by very different feelings and motives) all are deeply § 260 THE ORDER OF THE TRIAL. 273 interested, and excited either by the matter in, ques- tion or the manner in which it is to be conducted. "The parties, at all events, are deeply interested either in the value of the subject in dispute, or the costs, or exposure of character, incident to public investigation. The respective attorneys participate in the same feeling, and are influenced by the appre- hension that the result of the case may in some measure affect their professional character, either on account of the inexpediency of the proceeding, or of the defense, or the want of skill in conducting or de- fending it. The witnesses, whether or not (as is too often the case) influenced by relationship, friendship or secret interest, or by political or party feeling, are, at all events, anxious to acquit themselves with credit in court. The junior counsel is excited in no small degree, lest his laudable desire to advance in his pro- fession may be marred by some inadvertency in framing the pleadings, or in his examination of the witnesses, or that he may, in some state of the cause, incur the disapprobation or displeasure of his leader, or even of the judge, which might prejudice him in subsequent causes. The leading counsel, however justly confident in his knowledge of law and great experience in nisi prius tact, may yet well be nerv- ous and apprehensive that he may not present the particular case to the judge and jury in the most fa- vorable manner for his client, or that he may omit some material point, or may miscalculate by calling too many or too few witnesses, or fail in the want of adequate energy in his address to the jury, or in some other mismanagement of the cause. Each of 18 274 ELEMENTARY PRACTICE. § 261 the jurors also, if alive to his duty, should feel no inconsiderable anxiety to forget or not be influenced by any previous or sudden prejudice, and to suspend his judgment until the case has been closed and he has heard the observations of the judge. The learned judge, however experienced, can not be entirely free from apprehension that he may fail in the due ful- filment of his very arduous duties, or may misappre- hend some rule of law or its application to the par- ticular case, or may draw an incorrect conclusion as regards the evidence, or that his misstatement to the jury may mislead them and become the subject of an expensive application to the court for a new trial, or occasion a bill of exceptions or a demurrer to evi- dence.'" § 261. The order in which a case is tried. — While the writer, in describing the order of the trial, may not give it in the sequence observed in all jurisdic- tions, he believes it is substantially the same every- where. The case called for trial, the following steps are taken : 1. The jury is selected from the panel, usually by lot, and each party may then exercise his right to challenge, either peremptorily, or for cause. 2. The plaintiff's counsel then opens his case to the jury, unless the burden of proof is upon the de- fendant, and he has been accorded the privilege of opening. 3 . The witnesses for the plaintiff are first examined , and are subject to cross-examination by the defend- ant, and may be re-examined by the plaintiff. '■ 3 Chitty's General Practice, 867. § 261 THE ORDER OP THE TRIAL. 275 4. The case for the plaintiff rested, the defendant has open to him, before proceeding with his evidence, a motion which is variously named : (a) For a compulsory non-suit. (b) To dismiss the case. (c) A demurrer to the evidence. All, however, have the same effect and are founded upon similar grounds, the object being to dispose of the case upon the legal position that the plaintiff can not recover, even admitting his facts to be true. 5. Omitting or failing to do this, the defendant then opens his case to the jury and introduces his evidence as did the plaintiff. 6. The plaintiff may then offer rebutting evidence to new matters raised by the defendant, and, some- times, the latter is entitled to a sur-rebuttal. 7. The evidence closed, the parties present their points, or requests for instructions, raising the law of the case. 8. These points are argued to the court, the plaint- iff opening and closing that argument. 9. The defendant's counsel then addresses the jury and is followed by the plaintiff ; the rule being that he who has the burden of proof can both open and close to the jury. 10. Then follows the charge of the court, with the answers to the points, or requests for instructions, and then comes the verdict. 11. If this does not end the cause, a motion for a new trial and an appeal, or either, are taken by the unsuccessful party. It is proposed to discuss these subjects, and in the order named, in this part of our work. CHAPTER XXVI. SELECTING THE JURY. §262. The panel. 263. The qualifications of a juror. 264. Persons exempt from jury service. 265. Challenges to the array or panel. 266. Peremptory challenges. 267. Challenges for cause. 268. Grounds of challenges for cause. 269. Personal hostility or actual bias. 270. Grounds for exclusion of a juror for bias. 271. Exclusion by reason of a formed or expressed opinion. 272. Trying challenges. 273. When the the right to challenge has been waived. § 262. The panel. — ^The preparation of the lists of qualified persons for jury service is regulated by the statutes of the several states, as is the making up of the panel for the trial of causes at the several sittings or terms of the court. In some states, the lists are made up by special boards ; in others, by an officer of the court, such as the sheriff, in conjunction with other county officers, like jury commissioners ; and in others, by the town authorities to whom the venire is issued for that purpose. In the federal courts, the practice is regulated by the act of congress of June 20, 1879, requiring the juries to be drawn from a box containing the names of three hundred persons, (276) § 263 SELECTING THE JURY. 277 placed therein by the clerk of the court, and by a commissioner appointed by the judge, the clerk and the commissioner being of opposite political parties. From these jury lists the panel is drawn, who are summoned to attend the court at a special session, and from that panel is chosen the twelve who are to sit in the trial of each cause. § 263. The qualifications of a juror. — The qualifi- cations of a juror are regulated by constitutional provisions or by legislative enactments. Three requisites are almost universally prescribed ; the juror must be a citizen of the county, a male above the age of twenty-one years, and shall enjoy the elec- tive franchise.' In some of the states he must also be possessed of an estate of a certain value, and in others he must be a householder.^ § 264. Persons exempt from jury service. — Cer- tain persons have the privilege of being exempt from ' In Arkansas it is held that a resident in the county, and a citizen of the state, is competent to serve as a juror, although his residence has not been of sufficient length to confer upon him political privileges. Anderson v. State, 5 Ark. 444. See also State V. Francis, 76 Mo. 681. In United States v. Nardello, 4 Mackey (D. C.) 503, it was held that a juror was qualified as a resident of Washington to sit in the trial of a case in the District of Columbia, because he lived in that city, although he spent his vacations and voted in Virginia. Quaere, would he be a qualified voter in that state? It was held in Nevada that a qualified voter who had not paid his poll tax or had been registered, although the time had not expired within which to perfect his registry, was not rendered incompetent to sit as a juror. State v. Salge, 1 Nev. 455. ^ New York, Virginia, North Carolina and New Mexico require the juror to be possessed of property. In Texas, Mississippi and Alabama, he must be a householder. In Indiana he must be both a freeholder and a householder. 278 ELEMENTARY PRACTICE. § 265 jury service ; those exceptions relating to age, occu- pation, previous service, and mental or physical in- firmity. Those who are freed from this duty by rea- son of their occupations include attorneys at law in active practice, clergymen, physicians, public officers and court officials, justices of the peace, constables, professors and teachers in colleges and schools, and their students and. pupils ; as well as others whose employment is of such a nature as to discommode the public were they to be compelled to do jury serv- ice ; such are railroad, steamboat, telegraph, tele- phone and incorporated bank officers and employes, mail agents, and public stage drivers. But these exceptions are personal privileges which may be waived by those to whom they apply, and do not operate as such disqualifications as would be ground for challenge by the parties to an action. § 265. Challenges to the array or panel. — At com- mon law, such a challenge was confined to the parti- ality or some default in the sheriff who arrayed the panel ; but, with the enlargement of the processes of selecting, drawing and returning the jury lists, the grounds for challenging the array have now been enlarged until it may be stated, as a general rule, that any want of statutory form, properly and season- ably presented, would be cause for quashing the panel. In many of the states there are statutory ' enactments regulating and providing for challenges to the panel. Such challenges are much more com- mon in criminal than in civil causes, and while often made in the former are usually unsuccessful. § 266. Peremptory challenges. — While at common law the right to challenge peremptorily was confined § 266 SELECTING THE JURY. 279 to criminal cases, this privilege has now been ex- tended in most of our jurisdictions, if not in all, to both civil and criminal causes ; the number of such challenges being regulated by the statutes of the several states. In the United States courts, under the provisions of section 819 of the revised statutes, in treason and capital offenses, the prisoner is entitled to twenty, the government to five, peremptory chal- lenges ; in other felonies the former has ten, the latter three ; in all other cases, civil or criminal, each party has three. In the state courts, the number of such challenges approximates to the practice in the federal courts in criminal trials, and, in civil cases, ranges from two to one-fifth of the number of jurors.' The right of each defendant in criminal trials, where two or more are indicted and tried together, to the full number of peremptory challenges, in the absence of a statutory provision, has been variously adjudicated; but it seems to be the better authority that where the statute gives such challenges to " every person," it can be exercised by every defendant; but where the right is extended to " each party," or to " either party," that only the full number can be allowed to all the defendants.^ In civil cases it seems to be settled that when there are several defendants, making a common and joint defense, they have collectively only the same num- ' See the statutes collated in 12 Am. & Eng. Eneyc. Law (Ist ed.) 347. Title "Jury & Jury Trial." 2 Thompson & Merriam on Juries, §162; United States v. Hall, 44 Fed. Eep. 883; Moschell v. State, 22 Atl. Eep. 50; States;- Stoughton, 51 Vt. 362; Contra, Savage v. State, 18 Fla. 909; Wig- gins V. State, 1 Lea (Tenn.) 738. 280 ELEMENTARY PRACTICE. § 267 ber of peremptory challenges to which one defend- ant would be entitled.' But where the defendants plead separately, are each represented by counsel, and different verdicts may be rendered against the several defendants, each one is entitled to the stat- utory number of such challenges.^ So, also, where several actions by the same plaintiff have been com- menced, and afterwards consolidated under a com- mon defense, each defendant is entitled to the ful] number of challenges. ° § 267. Challenges for cause. — The ancient division of challenges for cause into principal challenges, and those to the favor, no longer exists. The distinction lay in the mode of trying such challenges, the former being decided by the court, and the latter by triors. They are now universally tried by the courts, triors having been abolished by statute.' The various grounds of challenge for cause apply equally in civil and criminal cases. It is a matter of right, and is co-existent with the jury system itself. The constitutional right of trial by jury implies that the trial shall be by an impartial jury, and upon that question the courts have spoken in no uncertain lan- ' Stone V. Segur, 93 Mass. 568; Snodgrass v. Hunt, 15 Ind. 274; Bibb V. Reid, 3 Ala. 88; Schmidt v. Chicago, etc., R. R. Co., 83 111. 405. ' Strote V. Hinchman, 37 Mich. 490. ' Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285. ' "The triors, in case the first man called be challenged, are two indifferent persons named by the court ; and if they try one man and find him indifferent, he shall be sworn ; and then he and the two triors shall try the next ; and when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest." Sharswood's Blackstone's Com. Ill, 363. § 268 SELECTING THE JUEY. 281 guage. In Diven v. City of Elmira, 51 N. Y. 506, it was said: "The object of the law is to procure impartial, unbiased persons for jurors. They must be oinni exceptione major es." The supreme court of Georgia, in Nelson y. Dickson, 63 Ga. 682, said : "An impartial jury is the corner-stone of the fairness of trial by jury; " and in Ensign v. Harvey, 15 Neb. 330, it was well said : " Unless fair-minded and unbiased jurors can be selected, a trial becomes a mere farce, dependent, not upon the merits of the case, but upon extraneous circumstances, such as the bias, prejudice or interest of the jury." § 268. Grounds of challenges for cause. — The chief grounds of challenges for cause may be thus briefly stated : 1. Lack of the statutory qualifications of the juror, to which we have already referred. To this it may be added that a juror who does not understand the English language is disqualified from sitting in the case, although his rejection on that ground is largely within the discretion of the court.' 2. Interest in the result of the action disqualifies, but not an interest merely in the legal questions in- volved, without an interest in the result of the cause.* The various grounds of interest are these: (a) Pe- cuniary, in the result of the suit.' {h) Similar case ' Sutton V. Fox, 55 Wis. 531 ; Fisher v. Philadelphia, 4 Brewster (Pa.) 395; McCampbell v. State, 9 Tex. App. 124; Lyles v. State, 41 Tex. 172; Plank Eoad v. Railroad Co., 13 Ind. 99. 2 Wood V. Stoddard, 2 Johns (N. Y.) 194; Williams v. Smith, 6 Cow. (N. Y.) 166. 'Small V. Jones, 6 Watts & Serg. (Pa.) 122; Meeker v. Potter, 5 N. J. Law 686; Omaha v. Cane, 15 Neb. 657. 282 ELEMENTARY PRACTICE. § 268 pending.' (c) That the juror has wagered upon the result.^ (d) Citizenship and tax-payer in a town or city party to the action. In many of the states this disqualification is removed by statute; but, in the absence of such a statute, it seems to be settled that the juror is disqualified if the action is against a mu- nicipality for damages, or for the direct recovery of money on any other ground, so that the judgment may affect his taxes.' (e) Membership, or stock- holder, in a private corporation party to the cause.* (f) Membership in an association, one of the parties to the action, where the juror must contribute to the expenses of the suit.' 3. Relationship to either of the parties to the action. At common law, and now in some of the states, this is extended to the blood or kindred within the ninth degree.* In other states, persons are per- ' Gardner v. Lanning, 3 N. J. Law 231 ; Lord v. Brown, 5 Denio (N. Y.) 345 ; Talmadge v. Northrup, 1 Root (Conn.) 455. 2 Essex V. McPherson, 64 111. 349; Cheverius v. Com., 81 Va. 787 ; Seaton v. Swem, 58 Iowa 41. ^Diven v. City of Elmira, 51 N. Y. 506; Goshen v. England, 119 Ind. 368; Gibson v. Wyandotte, 20 Kan. 156; Bailey v. Trum- bull, 31 Conn. 581; Fulweiler v. St. Louis, 61 Mo. 479; Kendall V. City Albia, 73 Iowa 243; Mayor Columbus v. Goetchius, 7 Ga. 139; Hawes v. Gustin, 2 Allen (Mass.) 404; Wood v. Stoddard, 2 Johns (.N. Y.) 194; State v. Williams, 30 Me. 484. * Respublica v. Richards, 1 Yeates 480 ; Peninsula R. R. Co. v. Howard, 20 Mich. 18; Page v. Contocook Valley R. R. Co., 21 N. H. 438; Fleeson v. Savage Mining Co., 3 Nev. 157. ^ Com. V. Moore, 143 Mass. 136 ; Cleage v. Hyden, 6 Heisk. (Tenn.) 73. " Sharswood's Blackstone's Com. Ill, 363; Wireback v. First Nat. Bank, 97 Pa. St. Rep. 543; Jacques v. Com., 10 Gratt. (Va.) 690; Morrison v. McKinnon, 12 Fla. 552 ; State v. Perry, 6 Bush (N. Car.) 330. And Coke says: " How far remote soever he is of kindred, yet the challenge is good." Coke Litt., 157. § 268 SELECTING THE JURY. 283 mitted to act as jurors though more closely related to the parties than would have permitted them to sit at common law.' Relationship by affinity disquali- fies the juror at common law, and, under the statutes of most of the states, is also cause for challenge.* It has also been extended, by some decisions, to rela- tionship to a party beneficially interested in the case ; such as to a stockholder in a corporation party to the action ; or to one interested in its result ; and to counsel in the cause, whose fees depend upon recovery." 4. Dependence on a party to an action disquali- ^ In Alabama, -within the fifth degree; Code Ala., §4186. In New York, Maine and Indiana, sixth degree ; N. Y. Code Civ. Pro. §1166; Hardy v. Sproule, 32 Me. 310; High v. Big Creek Assn., 44 Ind. 356. In Vermont, California and Nebraska, fourth degree; Churchill v. Churchill, 12 Vt. 661; Cal. Pen. Code, § 1074 ; Cal. Civil Code, § 602 ; Marion v. State, 29 Neb. 233. ^O'Conner v. State, 9 Pla. 215; Jacques v. Com., 10 Gratt.