[blocks in formation]
[ocr errors]


Law Booksellers and Publishers,

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors][merged small][ocr errors][merged small][ocr errors][ocr errors][merged small][merged small][merged small]




Having now completed the work of consolidating the General Orders of the Court of Chancery, which was entrusted to us by your Lordship, we beg to make some observations thereon, by way of Report.

The instructions which, by your Lordship’s direction, were given us by Mr. John James Johnson, the Solicitor to the Suitors' Fund, were thus expressed : “ To consolidate all the Orders contained in the collection of Orders by G. W. Sanders, Esq., published by Maxwell & Son, in the year 1845, which relate to general practice, and the Orders of the Court subsequent thereto relating to general practice; so that all such Orders as have become superseded, or have become obsolete as Orders, though they may have been the foundation of existing practice, and all such Orders as are expressly or virtually abrogated by other Orders, or by statutes, or by decisions which appear to have established a practice more expedient than that which the Orders repugnant to them enjoin, be omitted; and so that the remainder, except where their style is very antiquated, be not further altered ín language than shall be deemed necessary for the purpose of consolidating the same, and of adapting them to the present practice, so as to form a harmonious and well-arranged collection, and for the purpose of determining the most expedient practice, where there is a conflict of authority on the words of an Order."

During the progress of the work, an opinion was expressed by one or two of the officers of the Court, that a more extended plan should be at once adopted; and we have been strongly urged to apply to your Lordship for an extension of the powers conferred by the above instructions. We have declined, however, to make such an application, for the reasons (amongst others) expressed in the following remarks :

The procedure of the Court of Chancery (as it is well known) is regulated in various distinct ways:- Ist. By Act of Parliament. 2ndly. By General Orders made by the Lord Chancellor, either alone, or by and with the advice and assistance of the other Equity Judges, or some of them. 3rdly. By Regulations not purporting to be General Orders. 4thly. By Decisions. 5thly. By Usage.

These various modes are not the result of accident or caprice, but (in our humble opinion) of practical convenience and sound discrimination, on the part of those who from time to time have allowed the practice of the Court to be so directed. And although it would be a more simple, and, to some, it might appear to be a more perfect system, to fuse Statutory Enactments, General Orders, and mere Regulations into one code of rules, of one and the same character, yet we think that, in reality, such a course would be very objectionable.

We apprehend that it has been the wisdom of the Legislature, and of the Court of Chancery, to preserve these different modes of governance or direction quite distinct. Although there are many exceptions and anomalies, yet, in the main, the following distinctions may be laid down :- 1st. There are some principal points of procedure which have been considered to be of such a character, that it is desirable that they should not be subjected to abrogation or alteration, except by the Legislature itself; and they have accordingly been embodied in the form of Enactments.


2ndly. There are others, as to which it has been considered to be desirable that they should be revocable or alterable by the Lord Chancellor alone, or with the advice and assistance of the other Equity Judges or some of them; and those have accordingly been embodied in the form of General Orders. 3rdly. There are others which are deemed to be more properly the subject of mere Regulations, as consisting of matter relating to the routine of particular offices, or matters of detail or of experiment, so as to render it inexpedient to embody them in the permanent and formal shape of General Orders. 4thly. There are other points of infinite variety which are, and ever must be, decided pro re nata. And, 5thly. There are others which are suggested by convenience, and become sanctioned by mere usage.

It has been urged with great plausibility, that at all events the Enactments on the subject and the Orders ought to be consolidated into one code of Enactments or of Orders. And indeed we fully admit that this would be a great convenience to the Judges, to the Officers of the Court, and to Practitioners. But the convenience of these several persons ought to be only subordinate to the public advantage. And we conceive that it would have been a great mistake, on the whole, to have consolidated Enactinents and Orders into one code of rules of the same character, whether exclusively as Enactments or exclusively as Orders. It is not at all likely that the Legislature would consent to place those important rules of practice which it has thought fit to make the subject of Enactments, within the power of the Equity Judges, or some of them, to be rescinded or altered at pleasure, by reducing them to the character of Orders. And, on the other hand, it would seem to be most inexpedient to take the opposite course of embodying all the Orders into an Act of Parliament: for, the difficulty of obtaining an alteration or improvement of the law, when once it has been incorporated into an Act, is well known. And if so incorporated, it would not be in the power of the Judges to make those exceptions and qualifications in particular cases, which they have the power to make in the case of mere Orders. This is the dilemma

« ElőzőTovább »