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Art. IX.-THE NEW CHANCERY ORDERS.
Orders for the Regulation of the Practice and Proceedings of
the Court of Chancery; issued in pursuance of the Recommendations of his Majesty's Commissioners, by the Lord High Chancellor.-April 3, 1828.
CONSIDERING the orders lately issued by the heads of the Court of Chancery as the only results hitherto realized by the labour of the Commissioners, and the lengthened discussions on the subject which have occupied so much of public attention, we feel ourselves called upon not only to place them upon our pages, but to review them in detail, in the hope of discovering some benefit equal to the labor bestowed upon the undertaking, or at least of adding our mite to the quantum of knowledge and observation on the subject. With this view we have taken considerable pains to avail ourselves of the most obvious sources of actual practical knowledge; and in what we may say, we hope we shall not be considered as expressing ourselves too strongly, or as desiring to be found in the ranks of those who are eager to discover blemishes in plans which at least have reform for their object, though that object may not always be easy of attainment. We may differ, and differ widely, as to the mode and extent of alteration in the system; we may lament that more care and consideration have not been afforded ; and that practical men were not more consulted, before the risk was run of throwing back reform by making it in any degree abortive or ridiculous ; but still we wish to bear constantly in mind, that the system operated upon is one in which almost any alteration has a great chance of being an improvement; and that it would be ungracious as well as impolitic to head a clamour against the effor.s of those who have made a beginning; or to overlook the obligations we owe to a judge whose zeal directs him, by rare good fortune, in the course of reform, and who, at any rate, brings to his task diligence and experience in those departments of the profession with which his pursuits have made him conversant.
No one can look at these orders, even as part of a plan of practice in the inferior departments of the Court, without seeing that they imply much more extensive alterations, in the absence of which they will be often nugatory or inconsistent, and in a few cases positively mischievous. We lament to see the session terminated without any effectual relief being afforded to the actual and pressing evils attending equity business ; without any measures taken to render the Court of Exchequer efficient; and even without any completion of the plan of Chancery reform
60 far as it requires parliamentary assistance; and we fear that the ill success and imperfection of some of the regulations before us have not propitiated the public assistance in carrying on the work.
The result of what is done, if we are to rest there, is manifestly very trifling with reference to the practical evils so long complained of. Expence is not cut down, nay, it is in some instances increased. The great crying nuisances, in that respect, remain unabated. A few weeks' time is saved, and plaintiffs are to be often harassed with operations, which will keep them up to fever heat for a few days, that they more sensibly pine for months and years under the cold fit whích forms the alternative of the disease. But the delay of justice,--the great evil that a suitor when he has got his cause ready cannot have it heard ;—that, of the five years which even a short Chancery suit is said, on an average, to occupy, full three are spent in waiting for judicial attention ;remain unaltered: and while this is so, it is idle to tell such a suitor that he is relieved, by being precipitated a few days or weeks sooner into a position where he may fret or repose himself, with equal effect upon the future progress of his cause. short, the objection taken by every one to what has been done is, that the work is begun at the wrong end-at the bottom instead of at the top—with little things instead of great; that we are visited with all the troubles and inconveniences of change with very few of the counterbalancing advantages. (a)
We cannot but add, that the Commissioners themselves seem to have hardly less right than the suitors to complain of the manner in which their suggestions have been treated. It would be doing them great injustice to represent them as sanctioning the delusion, that the delay, which is really injurious to suitors, is to be got rid of by merely expediting the cause to the time of its being set down for hearing. If we look through the body of the report, it is evident that they intended no such thing. They leave open the question of the sufficiency of the judicial establishment, on which it is certainly to be wished that they had been more explicit, but they advert expressly to the delay at present occurring between the time of setting down for hearing and the actual hearing, as a subject, (although incapable of being regulated by orders, and necessarily depending, in a great degree, on the quantity of business brought before the Court,) yet one to which their attention was directed, and which they considered many of their propositions calculated to meet.
“We consider," say they, “ that many of our propositions will
(u) Mr. Cooper has forcibly expressed the saine opinion in the work which we have noticed in the precaling part of this number.
have an important effect in relieving the Court, and will thus accelerate the dispatch of its general business ;” and they refer to such principally as go-to limit the right of appeal, at present far too lavishly permitted in every stage of the proceeding, and through each successive step of progression—to restrict the number of counsel privileged to be heard to two on each sideto increase the establishment in the Registrar's office so as to obviate the delay and inconvenience occasioned by the too great press of business in that department—to abridge the length of decrees and orders by the omission of recitals—to simplify some of the forms, and curtail the needless prolixity of pleadings to give to the Master the power of fixing the time for certain steps being taken in cases where supplemental suits are rendered necessary (Prop. 109.)—to remove doubts, appearing to be too generally entertained, as to the practice of the Court in confining its decrees to particular relief (Prop. 124.)—to allow a defence by answer to part only of a bill, in certain cases, where it is now necessary to answer fully (Prop. 125.)—to guard against the abuse of weary, dilatory, and vexatieus injunctions (Prop. 126.)—to regulate the present oppressive course of precedence upon motions—to diminish the expense of proceedings in the Master's offices by the abolition of payment of copy-money and gratuities to the clerks—and to remove the disgrace and opprobrium now attaching to the Court by the want of power to inforce its own orders by any other process than that of imprisonment (Prop. 155, 156.)—a humane and salutary provision which it would be unjust to deprive the Commissioners of the honour of having suggested, though Mr. Sugden has lately, without any reference to their report, announced his design of taking it on himself to effect it. Add to these, summary remedies by petition in some cases where bill is necessary_removal of certain branches of jurisdiction to the Exchequer, &c. It is only fair then to ask whether the Commissioners would have recommended the present detachment of orders at all, without the remainder.
Neither are the Commissioners at large responsible for any partial failure that may attach to the orders regulating the Master's offices. The most important of the proposed reforms, those of a financial nature, are omitted, as already explained. Those which relate to the mere course of proceeding in these offices were principally adopted at the suggestion of one of the Commissioners (Mr. Courtenay), then himself a Master—and in vain reliance on his continuing in his office, and setting the erample of the mode in which he intended them to operate. He was peculiarly fit for this, not only as having made his own suggestions, but also on account of his great talent for the details of business, his personal activity and zeal. He was removed from his_office before the arrival of the period for carrying into effect his proposals—and, to do away still more completely with the possibility of any advantage from his experience and knowledge of his own intentions, we hear he was not so much as consulted on the orders made in compliance with his suggestions. This last observation applies indeed to all the propositions, except only such as emanated from the then Vice Chancellor (Sir John Leach) himself; since it is well known that not one of the other Commissioners was referred to on the occasion of making the orders.
We shall first proceed with the orders as published" by authority," and shall then subjoin a few practical observations on each in its turn.
“ ORDERS. “The Right Honourable John Lord Lyndhurst, Lord High Chancellor of Great Britain, by and with the advice and assistance of the Right Honourable Sir John Leach, Master of the Rolls, and the Right Honourable Sir Lancelot Shadwell, Vice-Chancellor of England, doth hereby order and direct in manner following; that is to say,
“ 1. That every plaintiff, as well in a country cause as in a town cause, shall be at liberty, without affidavit, to obtain an Order for a subpoena returnable immediately ; but such subpænæ in a country cause is to be without prejudice to the defendant's right to eight days time to enter his appearance after he has been served with the subpæna.
“. 2. That a writ of subpæna to appear, or to appear and answer, shall be sued out for each defendant, except in the case of husband and wife defendants : and that the costs of all such writs shall be costs in the cause.
“ 3. That a defendant in a country cause shall no longer be permitted to crave the common dedimus; but shall either put in his answer within eight days after his appearance, or shall obtain the usual orders for time.
“ 4. That in all cases, whether the defendant's answer be filed in term time or in vacation, the plaintiff shall be allowed two months to deliver exceptions to such answer; but if the exceptions be not delivered within the two months, the answer shall thenceforth be deemed sufficient, and the plaintiff shall have no order to deliver exceptions nunc pro tunc.
“5. That when exceptions taken to an answer for insufficiency are not submitted to, the plaintiff may, at the expiration of eight days after the exceptions are delivered, but not before, unless in injunction causes, refer such answer for insufficiency; and, if he do not refer the same within the next six days, he shall be considered as having abandoned the exceptions; in which latter case such answer shall be thenceforth deemed sufficient.
“6. That if the plaintiff do not, within a fortnight after a defendant's second or third answer is filed, refer the same for insufficiency on the old exceptions, such answer shall thenceforth be deemed sufficient.
“7. That if the plaintiff do refer a dcfendant's second or third answer
for insufficiency on the old exceptions, then the particular exception or exceptions to which he requires a further answer shall be stated in the order.
“8. That if upon a reference of exceptions the Master shall find the answer insufficient, he shall fix the time to be allowed for putting in a further answer, and shall specify the same in his report, from the date whereof such time shall run, and it shall not be necessary for the plaintiff to serve a subpoena for the defendant to make a better answer: and, any defendant who shall not put in a further answer within the time so allowed, shall be in contempt, and be dealt with accordingly.
“9. That if upon a reference of exceptions the answer be certified sufficient, it shall be deemed to be so from the date of the Master's report ; and, if the defendant submit to answer without a report from the Master, the answer shall be deemed insufficient from the date of the submission.
“10. That upon a third answer being reported insufficient, the defendant shall be examined upon interrogatories to the points reported insufficient, and shall stand committed until such defendant shall have perfectly answered such interrogatories; and shall pay, in addition to the four pounds costs heretofore paid, such further costs as the Court shall think fit to award.
“11. That no order shall be made for referring any pleading or other matter depending before the Court for scandal or impertinence, unless exceptions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent, nor unless such order be obtained within six days after the delivery of such exceptions.
“12. That when any order is made for referring an answer for insufficiency, or for referring an answer or other pleading or matter depending before the Court for scandal or impertinence, the order shall be considered as abandoned, unless the party obtaining the order shall procure the Master's report within a fortnight from the date of such order, or unless the Master shall within the fortnight certify that a further time, to be stated in his certificate, is necessary, in order to enable him to make a satisfactory report; in which case the order shall be considered as abandoned, if the report be not obtained within the further time so stated ; and where such order relates to alleged insufficiency in an answer, such answer shall be deemed sufficient from the time when the order is to be considered as abandoned.
“13. That the plaintiff shall be at liberty, before filing a replication, to obtain, upon motion or petition without notice, one order for leave to amend the bill; but no further leave to amend shall be granted before replication, unless the Court shall be satisfied by affidavit that the draft of the intended amendments has been settled, approved, and signed by counsel, and that such amendments are not intended to be made for the purpose of delay or vexation, but because the same are considered to be material to the case of the plaintiff; such affidavit to be made by the plaintiff, or one of the plaintiffs where there is more than one, or his, her, or their solicitor, or by such solicitor alone, in case the plaintiff or plaintiffs, from being abroad or otherwise, shall be unable to join