Clerks in
Court.

of the land as much as a positive order. (Per Lord Eldon, in Brown v. Bruce, 2 Mer. 1).

Much of modern practice will, I fear, be found inconsistent with subsisting orders, without any contradiction of them by subsequent orders; and upon principle, repeated decisions, forming a series of practice, as it must be, against an order, may be with safety taken to amount to a reversal of that order. (Per Lord Eldon, in Boehm v. De Tastet, 1 Ves. & Bea. 328).

There is no rule of practice that will not yield to special circumstances. (Per Lord Eldon, in Butler v. Bulkeley, 2 Swanst. 374).

An irregular order may be waived by subsequent consent, but an order which is strictly erroneous cannot. (Levi v. Ward, 1 Sim. & Stu. 334).

Where a doubt arises as to the actual state of the practice, the Court will direct a reference to the Master to inquire into the regularity of the proceeding, in order that the question may be fully considered upon exceptions. (Broomhead v. Smith, 8 Ves. 357).

Thirteen of the clerks in court having signed a certificate in favour of a motion, and all the Regis

-know what to trust to: equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. 'Tis all one as if they should make his foot the standard for the measure we call a Chancellor's foot, what an uncertain measure would this be! One Chancellor has a long foot; another a short foot; a third an indifferent foot: 'tis the same thing in the Chancellor's conscience."-Selden's Table Talk.

trars, except Mr. Colville, having concurred-the Vice-Chancellor was, nevertheless, of opinion, "that he was not bound to decide according to the certificate, as no decided case was referred to in support of it; but the opinion of the clerks in court was founded on a theory of their own." (Wilson v. Bates, 9 Sim. 55).

On the last-cited case coming before Lord Cottenham, on appeal, his Lordship made the following observations:-"The real question, therefore, comes after all to be, what is the present practice? Decision, it is admitted, there is none. A certificate signed by a number of the clerks in court has been produced, not alleged to be founded on any authority, but stating the opinion of the individuals who sign it, that a party in contempt cannot do that which the plaintiff has done in the present instance. The certificate is valuable, no doubt, from the experience of those individuals, speaking to what they consider the universal practice; but no case is referred to in support of the opinion; and if I find that the practice is not, and cannot be, as they have supposed, its value entirely fails." (Wilson v. Bates, 3 Myl. & Cr. 201).

CHAPTER II.

LIABILITY OF THE OFFICERS OF THE COURT IN THE EXECUTION OF ITS PROCESS.

WHERE a party is arrested by virtue of the process of this Court, which turns out to be irregular, he may apply to the Court, either for a reference to the Master to settle a proper compensation, or for liberty to bring an action. (Bicknell v. Stamford, 1 Beav. 368).

If the misconduct of an officer of the Court in executing its orders becomes the subject of civil proceedings before another tribunal, the Court, in its discretion, may either itself take cognizance of the complaint, or may leave the matter to be dealt with upon such proceedings; but wherever the title to redress against such officer is founded on a denial of his authority, or on an alleged defect in the order which he has executed, the Court (which alone is competent to decide upon the validity of its own orders) is bound to interpose by injunction, and assume exclusive jurisdiction over the matter of complaint. (48ton v. Heron, 2 My. & Kee. 390). Thus where the plaintiff, arrested under an attachment sued out by the defendant, which was afterwards set aside for irregularity, brought an action for false imprisonment against defendant, the Court restrained the

action, and referred it to the Master to settle a proper compensation. (Bicknell v. Stamford, 1 Beav. 368). And where, from the circumstances, it appeared impossible to make out a case for damages, the Court granted an injunction to restrain a party from proceeding in an action of trespass brought against the messenger of the Court, and ordered the plaintiff at law to pay the costs of the application. (Chalie v. Pickering, 1 Kee. 749).

CHAPTER III.

SOLICITORS.

A SOLICITOR ought to have a special authority from his client for instituting a suit, but such authority need not be in writing. (Lord v. Kellett, 2 My. & Kee. 1). The Court has no jurisdiction to make a solicitor responsible for negligence in the conduct of a suit. (Frankland v. Lucas, 4 Sim. 586). A solicitor may practise in the name of an attorney, as his agent, in the Courts of law; but an attorney at law cannot practise in the name of a solicitor, as his agent, in the Courts of equity. (Hockley v. Bantock, 2 My. & Kee. 437).

CHAPTER IV.

SERVICE OF WRITS, ORDERS, WARRANTS, &c.

IT has long been a source of complaint, and a heavy grievance to suitors in the Court of Chancery, that the solicitors of the litigating parties could not communicate directly with each other, but that whatever was to be done could be effected only through the agency of their respective clerks in court. If the solicitor had any communication to make, any order or rule to serve, or any warrant or other document arising in the progress of the cause to leave with the solicitor for the other party, he could not serve or leave it directly, but was compelled to act by the hands of his clerk in court, who communicated with the clerk in court of the other party, through whom the order or document in question finally reached its proper destination. This, one of the most serious, has been also one of the most inveterate, evils of the Court of Chancery. The only persons who, in the nature of things, are necessarily interposed between the party and the Court, are the solicitor and counsel. A third intervener, in the form of a clerk in court, could not by possibility render any effective aid in faci

*The five orders which form the subject of the following observations were, by the Order of the 19th Nov. 1841, suspended till the first day of Easter Term, 1842, but it was not thought necessary to omit the present chapter, under the impression that they would, in a short period, come substantially into operation; they have, however, by the Order of the 10th April, 1842, been suspended again "until further order."