THE 
 
 NEW ORDERS 
 
 FOR THE REGULATION OF 
 
 THE PRACTICE AND PROCEEDINGS 
 
 (IP THE 
 
 COURT OF CHANCERY. 
 
 ISSUED HY THK 
 
 LORD HIGH CHANCELLOR, 
 
 26th AUGUST, 1841. 
 
 WITH REMARKS ON THEIR EFFECT ON THE PRESENT 
 PRACTICE OF THE COURT. 
 
 AND SOME SUGGESTIONS FOR REFORMING 
 THE SAID COURT. 
 
 BY JOHN SIDNEY SMITH, 
 
 OF 1 SIX CLERKS' OFFICE. 
 
 LONDON: 
 
 SAUNDERS AND BENNING, LAW BOOKSELLERS, 
 
 (SUCCESSORS TO j. IHJTTERWORTH AND SON,) 
 i3, FLEET STREET. 
 
 .1841.
 
 p
 
 THE 
 
 NEW ORDERS 
 
 FOR THE REGULATION OF 
 
 THE PRACTICE AND PROCEEDINGS 
 
 OF THE 
 
 COURT OF CHANCERY. 
 
 ISSUED BY THE 
 
 LORD HIGH CHANCELLOR, 
 26M AUGUST, 1841. 
 
 WITH REMARKS ON THEIR EFFECT ON THE PRESENT 
 PRACTICE OF THE COURT. 
 
 AND SOME SUGGESTIONS FOR REFORMING 
 THE SAID COURT. 
 
 BY JOHN SIDNEY SMITH, 
 
 OF THE SIX CLERKS' OFFICE. 
 
 LONDON : 
 SAUNDERS AND BENNING, LAW BOOKSELLERS, 
 
 (SUCCESSORS TO j. BUTTERWORTH AND SON,) 
 43, FLEET STREET. 
 
 1841.
 
 I.ON DON : 
 PRINT ID BY RAYSER AND HODGKS, 
 
 109, Fetter Lane, Fleet Street.
 
 PREFACE. 
 
 IN submitting the observations on the probable effects 
 of these Orders on the practice of the Court, the 
 writer is under considerable anxiety lest their purport 
 should be misunderstood. Emanating, as these Orders 
 do, from such high authority, he felt much diffidence 
 in offering any opinion upon their practical operation; 
 but fully persuaded that the Judges, with whom they 
 originated, were only actuated by a desire of reforming 
 the abuses of the Court of Chancery, he has been 
 encouraged to proceed, in the persuasion that efforts, 
 however humble, having the same direction, will neither 
 be deemed impertinent nor obtrusive. Re-assured by 
 this feeling, he has expressed his opinion of the probable 
 working of these Orders with the same freedom and 
 unreserve as if they had not yet been published, and 
 were under his consideration with a desire that any 
 defects in their practical application to existing abuses 
 might be pointed out. 
 
 1127616
 
 ORDER OF COURT. 
 
 26th August, 1841. 
 
 THE Right Honorable CHARLES CHRISTOPHER LORD 
 COTTENHAM, Lord High Chancellor of Great Britain, by 
 and with the ad vice and assistance of the Right Honorable 
 HENRY LORD LANGDALE, Master of the Rolls, Doth 
 hereby, in pursuance of an Act of Parliament, passed in 
 the fourth year of the reign of Her present Majesty, in- 
 tituled " An Act for facilitating the Administration of 
 Justice in the Court of Chancery," and of an Act passed 
 in the fourth and fifth years of the reign of Her present 
 Majesty, intituled, " An Act to amend an Act of the 
 Fourth Year of Her present Majesty, intituled ' An Act 
 for facilitating the administration of Justice in the Court 
 of Chancery,'" order and direct in manner following: 
 that is to say 
 
 I. THAT there shall forthwith be prepared a proper 
 Alphabetical Book for the purposes after mentioned, and 
 that such book shall be called the Solicitors' Book, and 
 shall be publicly kept at the Office of the Six Clerks, to 
 be there inspected without fee or reward. 
 
 II. THAT every Solicitor, before he practice in this 
 Court, in his own name solely, and not by an Agent,
 
 whose name shall be duly entered as after mentioned, 
 and every Solicitor, before he practice as such Agent, 
 shall cause to be entered in the Solicitors' Book, in 
 alphabetical order, his name and place of business or 
 some other proper place in London, Westminster, or the 
 Borough of Southwark, or within two miles of Lincoln's 
 Inn Hall, where he may be served with writs, notices, 
 orders, warrants, rules, and other documents, proceed- 
 ings, and written communications in causes and matters 
 depending in this Court : and as often as any such Soli- 
 citor shall change his place of business or the place where 
 he may be served as aforesaid, he shall cause a like entry 
 thereof to be made in the Solicitors' Book, and that the 
 above mentioned entries shall be made in such book by 
 the said Six Clerks, who shall be entitled to a fee of one 
 shilling for every such entry; and that the fund arising 
 from such payment shall be applied, in the first instance, 
 in paying the expenses of providing and keeping such 
 book. 
 
 III. THAT all writs, notices, orders, warrants, rules, 
 and other documents, proceedings, and written communi- 
 cations, which do not require personal service upon the 
 party to be affected thereby, shall be deemed sufficiently 
 served if such document, or a copy thereof, as the case 
 may be, shall be left at the place lastly entered in the 
 Solicitors' Book by the Solicitor of such party ; and if 
 any Solicitor shall neglect to cause such entry to be made 
 in the Solicitors' Book as is required by the Second Order, 
 then the fixing up a copy of any such writ, notice, order, 
 warrant, rule, or other document, proceeding, or written 
 communication for such Solicitor in the said Six Clerks' 
 Office, shall be deemed a sufficient service on him, unless 
 the Court shall, under special circumstances, think fit to 
 direct otherwise.
 
 3 
 
 IV. THAT if any Solicitor shall give his consent in 
 writing that the service of all or any writs, notices, orders, 
 warrants, rules, or other documents may be made upon 
 him through the Post-office or otherwise, such service 
 shall be deemed sufficient if made in such manner as such 
 Solicitor shall have so agreed to accept ; but it shall be 
 competent for any Solicitor giving such consent, at any 
 time to revoke the same by notice in writing. 
 
 V. THAT no person shall be allowed to appear or act, 
 either in person, by Solicitor or Counsel, or to take any 
 proceedings whatever in this Court, either as plaintiff, de- 
 fendant, petitioner, respondent, party intervening, or other- 
 wise, until an entry of the name of his Solicitor and his 
 Solicitor's Agent, if there be one, or if he act in person, 
 his own name and address for service shall have been made 
 in the Solicitors' Book at the office of the Six Clerks ; but 
 if such address of any person so acting in person, shall not 
 be within London, Westminster, or the Borough of South- 
 wark, or within two miles of Lincoln's Inn Hall, then all 
 services upon such person not requiring to be made per- 
 sonally, shall be deemed sufficient if a copy of the writ, 
 notice, order, warrant, rule, or other document to be 
 served, be transmitted to him through Her Majesty's Post- 
 office, to such address as aforesaid, (a) 
 
 VI. THAT no Writ of Attachment with proclamations, 
 nor any Writ of Rebellion, be hereafter issued for the 
 purpose of compelling obedience to any process, order, or 
 decree of the Court, (b) 
 
 VII. THAT no order shall hereafter be made for a 
 messenger, or for the Serjeant-at-arms, to take the body 
 of the defendant, for the purpose of compelling him to 
 appear to the Bill, (c) 
 
 (a) See Appendix A. p. 1. (c) See Appendix C. p. 14. 
 
 (6) Ibid. p. 13. 
 
 u \>
 
 VIII. THAT if the defendant, being duly served with a 
 subpoena to appear to and answer the Bill, shall refuse 
 or neglect to appear thereto, the plaintiff shall, after the 
 expiration of eight days from such service, be at liberty 
 to apply to the Court for leave to enter an appearance 
 for the defendant. And the Court, being satisfied that 
 the subpoena has been duly served, and that no appear- 
 ance has been entered by the defendant, may give such 
 leave accordingly ; and that thereupon the plaintiff may 
 cause an appearance to be entered for the defendant. 
 And thereupon such further proceedings may be had in 
 the cause as if the defendant had actually appeared, (d) 
 
 IX. THAT upon the Sheriff's return, non est inventus, 
 to an attachment issued against the defendant for not 
 answering the Bill, and upon affidavit made that due 
 diligence was used to ascertain where such defendant was 
 at the time of issuing such writ, and in endeavouring to 
 apprehend such defendant under the same ; and that the 
 person suing forth such writ verily believed, at the time of 
 suing forth the same, that such defendant was in the county 
 into which such writ was issued, the plaintiff shall be en- 
 titled to a Writ of Sequestration in the same manner that 
 he is now entitled to such writ, upon the like return made 
 by the Serjeant-at-arms, (e) 
 
 X. THAT no Writ of Execution, nor any Writ of At- 
 tachment shall hereafter be issued for the purpose of 
 requiring or compelling obedience to any order or decree 
 of the High Court of Chancery ; but that the party re- 
 quired by any such order to do any act, shall, upon being 
 duly served with such order, be held bound to do such 
 act in obedience to the order, (f) 
 
 XI. THAT if any party who is by an order or decree 
 
 (d) See Appendix D. p. 14. (/) See Appendix F. p. 19. 
 
 (). Ibid. E. p. 18
 
 ordered to pay money, or do any other act, in a limited 
 time, shall, after due service of such order, refuse or 
 neglect to obey the same according to the exigency 
 thereof, the party duly prosecuting such order shall, at 
 the expiration of the time limited for the performance 
 thereof, be entitled to an order for a Serjeant-at-arms, and 
 such other process as he hath hitherto been entitled to 
 upon a return, non est inventus, by the Commissioners 
 named in a Commission of Rebellion issued for non-per- 
 formance of a decree or order, (f)- 
 
 XII. THAT every order or decree requiring any party 
 to do an act thereby ordered, shall state the time after 
 service of the decree or order within which the act is to 
 be done; and that upon the copy of the order, which 
 shall be served upon the party required to obey the 
 same, there shall be endorsed a memorandum, in the 
 words or to the effect following; viz. "If you, the 
 within named A. B., neglect to perform this order by the 
 time therein limited, you will be liable to be arrested by 
 the Serjeant-at-arms attending the High Court of Chan- 
 cery ; and also be liable to have your estate sequestered 
 for the purpose of compelling you to obey the same 
 order." (g) 
 
 VIII. THAT upon due service of a decree or order for 
 delivery of possession, and upon proof made of demand 
 and refusal to obey such order, the party prosecuting 
 the same shall be entitled to an order for a Writ of 
 Assistance, (h) 
 
 XIV. THAT the memorandum at the foot of the sub- 
 prena to appear and answer, shall hereafter be in the 
 form following ; that is to say," Appearances are to be 
 entered at the Six Clerks' Office in Chancery Lane, Lon- 
 
 (/) See Appendix F. p. 19. (k) See Appendix H. p. 20. 
 
 (?) Ibid. G. p. 20.
 
 don, and if you do not cause your appearance to be 
 entered within the time limited by the above writ, the 
 plaintiff will be at liberty to enter an appearance for you ; 
 and you will be subject to an attachment and the other 
 consequences of not answering the plaintiff's bill, if you 
 do not put in your answer thereto within the time limited 
 by the General Orders of the Court for that purpose." 
 
 XV. THAT every person not being a party in any cause, 
 who has obtained an order, or in whose favour an order 
 shall have been made, shall be entitled to enforce obedi- 
 ence to such order by the same process as if he were a 
 party to the cause ; and every person, not being a party 
 in any cause against whom obedience to Any order of the 
 Court may be enforced, shall be liable to the same process 
 for enforcing obedience to such order as if he were a party 
 to the cause, (i) 
 
 XVI. THAT a defendant shall not be bound to answer 
 any statement or charge in the Bill, unless specially and 
 particularly interrogated thereto ; and a defendant shall 
 not be bound to answer any interrogatory in the Bill, except 
 those interrogatories which such defendant is required to 
 answer; and where a defendant shall answer any state- 
 ment or charge in the Bill, to which he is not interro- 
 gated, only by stating his ignorance of the matter so 
 stated or charged, such answer shall be deemed im- 
 pertinent. 
 
 XVII. THAT the interrogatories contained in the in- 
 terrogating part of the Bill, shall be divided as con- 
 veniently as may be from each other, and numbered con- 
 secutively 1 5 2, 3, &c., and the interrogatories which each 
 defendant is required to answer, shall be specified in a 
 note at the foot of the Bill, in the form or to the effect 
 following ; that is to say," The defendant (A. B.} is 
 
 (t) See Appendix J. p. 21.
 
 required to answer the interrogatories numbered respec- 
 tively 1, 2, 3, &c., and the office copy of the Bill taken 
 by each defendant shall not contain any interrogatories, 
 except those which such defendant is so required to an- 
 swer, unless such defendant shall require to be furnished 
 with a copy of the whole Bill, (j) 
 
 XVIII. THAT the note at the foot of the Bill, specify- 
 ing the interrogatories which each defendant is required 
 to answer, shall be considered and treated as part of the 
 Bill, and the addition of any such- note to the Bill, or any 
 alteration in or addition to such note after the Bill is filed, 
 shall be considered and treated as an amendment of the 
 Bill. 
 
 XIX. THAT instead of the words of the Bill now in 
 use preceding the interrogating part thereof, and begin- 
 ning with the words " To the end therefore," there shall 
 hereafter be used words in the form or to the effect fol- 
 lowing : " To the end, therefore That the said defend- 
 ants may, if they can show why your orator should not 
 have the relief hereby prayed, and may, upon their seve- 
 ral and respective corporal oaths, and according to the 
 best and utmost of their several and respective know- 
 ledge, remembrance, information and belief, full, true, 
 direct and perfect answer make to such of the several in- 
 terrogatories hereinafter numbered and set forth as by the 
 note hereunder written, they are respectively required to 
 answer ; that is to say," 
 
 1. Whether, &c. (f) 
 
 2. Whether, &c. 
 
 XX. THAT a defendant in a country cause shall be 
 allowed no further time for pleading, answering, or de- 
 murring to any original or supplemental Bill, or Bill of 
 
 ( See Appendix K. p. 21.
 
 8 
 
 Revivor, or to any amended Bill, than is now allowed to a 
 defendant in a town cause. (&) 
 
 XXI. THAT after the expiration of the time allowed to 
 a defendant to plead, answer, or demur (not demurring 
 alone) to an original Bill, if the defendant shall have filed 
 no plea, answer, or demurrer, the plaintiff shall be at 
 liberty to file a note at the Six Clerks' Office to the 
 following effect : " The plaintiff intends to proceed with 
 his cause as if the defendant had filed an answer, travers- 
 ing the case made by the Bill, and the plaintiff had 
 replied to such answer, and served a subpoena to rejoin." 
 And that a copy of such note shall be served on such de- 
 fendant in the same manner as a subpoena to rejoin is now 
 served, and such note when filed (a copy thereof being so 
 served), shall have the same effect as if the defendant had 
 filed an answer, traversing the whole of the Bill, and the 
 plaintiff had filed a replication to such answer, and served 
 a subpoena to rejoin. And after such note shall have 
 been so filed, and a copy served as aforesaid, the de- 
 fendant shall not be at liberty to plead, answer, or demur 
 to the Bill without the special leave of the Court. (I) 
 
 XXII. THAT a plaintiff shall not be at liberty to file a 
 note under the Twenty-first Order, until he has obtained 
 an order of the Court for that purpose, which order shall 
 be applied for upon motion, without notice, and shall not 
 be made unless the Court shall be satisfied that the 
 defendant has been served with a subpoena to appear and 
 answer the Bill ; and that the time allowed to the de- 
 fendant to plead, answer, or demur, not demurring alone, 
 has expired, (m) 
 
 XXIII. THAT where no account, payment, conveyance, 
 or other direct relief is sought against a party to a suit, 
 
 (Jfc) See Appendix L. p. 22. (t) See Appendix M.p. 22. 
 
 (/) Ibid. M. p. 22.
 
 it shall not be necessary for the plaintiff to require such 
 party, not being an infant, to appear to and answer the 
 Bill. But the plaintiff shall be at liberty to serve such 
 party, not being an infant, with a copy of the Bill, whether 
 the same be an original, or amended, or supplemental 
 Bill, omitting the interrogating part thereof: and such 
 Bill, as against such party, shall not pray a subpoena 
 to appear and answer, but shall pray that such party, upon 
 being served with a copy of the Bill, may be bound by all 
 the proceedings in the cause. But this order is not to 
 prevent the plaintiff from requiring a party against whom 
 no account, payment, conveyance, or other direct relief is 
 sought, to appear to and answer the Bill, or from prosecut- 
 ing the suit against such party in the ordinary way, 
 if he shall think fit. () 
 
 XXIV. THAT where a plaintiff shall serve a defendant 
 with a copy of the Bill under the Twenty-third Order, he 
 shall cause a memorandum of such service, and of the 
 time when such service was made, to be entered in the Six 
 Clerks' Office, first obtaining an order of the Court for 
 leave to make such entry, which order shall be obtained 
 upon motion without notice, upon the Court being satisfied 
 of a copy of the Bill having been so served, and of the 
 time when the service was made, (o) 
 
 XXV. THAT where a defendant shall have been served 
 with a copy of the Bill, under the Twenty-third Order, 
 and a memorandum of such service shall have been duly 
 entered, and such defendant shall not within the time 
 limited by the practice of the Court for that purpose, enter 
 an appearance in common form, or a special appearance 
 under the Twenty-seventh Order; the plaintiff shall be at 
 liberty to proceed in the cause, as if the party served with 
 a copy of the Bill were not a party thereto, and the party 
 
 () See Appendix N. p. 23. (o) See Appendix O. p. 23.
 
 10 
 
 so served shall be bound by all the proceedings in the 
 cause, in the same manner as if he had appeared to and 
 answered the Bill. ( p) 
 
 XXVI. THAT where a party shall be served with a 
 copy of the Bill under the Twenty-third Order, such party, 
 if he desires the suit to be prosecuted against himself in 
 the ordinary way, shall be entitled to have it so prosecuted ; 
 and in that case he shall enter an appearance in the com- 
 mon form, and the suit shall then be prosecuted against 
 him in the ordinary way. But the costs occasioned 
 thereby shall be paid by the party so appearing, unless 
 the Court shall otherwise direct. (9) 
 
 XXVII. THAT where a party shall be served with a 
 copy of the Bill under the Twenty-third Order, and 
 shall desire to be served with a notice of the pro- 
 ceedings in the cause, but not otherwise to have the 
 same prosecuted against himself, he shall be at liberty 
 to enter a special appearance under the following form ; 
 (that is to say,) "A. B. appears to the Bill for the 
 purpose of being served with notice of all proceedings 
 therein." And thereupon, the party entering such ap- 
 pearance shall be entitled to be served with notice of all 
 proceedings in the cause, and to appear thereon. But 
 the costs occasioned thereby shall be paid by the party 
 entering such appearance, unless the Court shall other- 
 wise direct, (r) 
 
 XXVIII. THAT a party shall not be at liberty to enter 
 such special appearance under the Twenty-seventh Order, 
 after the time limited by the practice of the Court for 
 appearing to a Bill in the ordinary course, without first 
 obtaining an order of the Court for that purpose ; such 
 order to be obtained on notice to the plaintiff, and the 
 
 (p) See Appendix P. p. 24. (r) See Appendix R. p. 24. 
 
 (9) Ibid. Q. p. 24.
 
 11 
 
 party so entering such special appearance, shall be bound 
 by all the proceedings in the cause, prior to such special 
 appearance being so entered. (s) 
 
 XXIX. THAT where no account, payment, conveyance 
 or other relief is sought against a party, but the plaintiff 
 shall require such party to appear to and answer the 
 Bill, the costs occasioned by the plaintiff having required 
 such party so to appear and answer the Bill, and the 
 costs of all proceedings consequential thereon, shall be 
 paid by the plaintiff, unless the Court shall otherwise 
 direct. ($) 
 
 XXX. THAT in all suits concerning real estate which 
 is vested in trustees by devise, and such trustees are 
 competent to sell and give discharges for the proceeds of 
 the sale, and for the rents and profits of the estate, such 
 trustees shall represent the persons beneficially interested 
 in the estate or the proceeds, or the rents and profits, in 
 the same manner, and to the same extent, as the execu- 
 tors or administrators in suits concerning personal estate 
 represent the persons beneficially interested in such per- 
 sonal estate ; and in such cases it shall not be necessary 
 to make the persons beneficially interested in such real 
 estate, or rents and profits, parties to the suit. But the 
 Court may upon consideration of the matter on the hearing, 
 if it shall so think fit, order such persons to be made 
 parties. 
 
 XXXI. THAT in suits to execute the trusts of a 
 will, it shall not be necessary to make the heir at law 
 a party ; but the plaintiff shall be at liberty to make 
 the heir at law a party where he desires to have the 
 will established against him. (M) 
 
 XXXII. THAT in all cases in which the plaintiff 
 
 (*) See Appendix S. p. 24. () See Appendix U. p. 24. 
 
 (*) Ibid. T. p. 24.
 
 12 
 
 has a joint and several demand against several persons, 
 either as principals or sureties, it shall not he necessary 
 to bring before the Court, as parties to a suit concerning 
 such demand, all the persons liable thereto ; but the 
 plaintiff may proceed against one or more of the persons 
 severally liable. () 
 
 XXXIII. THAT where a demurrer or plea to the 
 whole Bill shall be overruled, the plaintiff, if he does 
 not require an answer, shall be at liberty immediately 
 to file his note in manner directed by the Twenty-first 
 Order, and with the same effect, unless the Court shall, 
 upon overruling such demurrer or plea, give time to 
 the defendant to plead, answer, or demur ; and in 
 such case, if the defendant shall file no plea, answer, or 
 demurrer, within the time so allowed by the Court, the 
 plaintiff, if he does not require an answer, shall, on 
 the expiration of such time, be at liberty to file such 
 note. (u>) 
 
 XXXIV. THAT where the defendant shall file a de- 
 murrer to the whole Bill, the demurrer shall be held 
 sufficient, and the plaintiff be held to have submitted 
 thereto, unless the plaintiff shall, within twelve days 
 from the expiration of the time allowed to the de- 
 fendant for filing such demurrer, cause the same to 
 be set down for argument : and where the demurrer is 
 to part of the Bill, the demurrer shall be held sufficient, 
 and the plaintiff be held to have submitted thereto, 
 unless the plaintiff shall, within three weeks from the 
 expiration of the time allowed for filing such last men- 
 tioned demurrer, cause the same to be set down for 
 argument, (ar) 
 
 XXXV. THAT where the defendant shall file a plea 
 
 () See Appendix V. p. 25. (x) See Appendix X. p. 25. 
 
 (>) Ibid. W. p. 25.
 
 13 
 
 to the whole or part of a bill, the plea shall be held 
 good to the same extent and for the same purposes as a 
 plea allowed upon argument, unless the plaintiff shall, 
 within three weeks from the expiration of the time 
 allowed for filing such plea, cause the same to be set 
 down for argument, and the plaintiff shall be held to have 
 submitted thereto, (y) 
 
 XXXVI. THAT no demurrer or plea shall be held 
 bad and overruled upon argument, only because such de- 
 murrer or plea shall not cover so much of the Bill as it 
 might by law have extended to. (z) 
 
 XXXVII. THAT no demurrer or plea shall be held 
 bad and overruled upon argument, only because the 
 answer of the defendant may extend to some part of 
 the same matter as may be covered by such demurrer or 
 plea. (*) 
 
 XXXVIII. THAT a defendant shall be at liberty by 
 answer to decline answering any interrogatory or part 
 of an interrogatory, from answering which he might have 
 protected himself by demurrer ; and that he shall be at 
 liberty so to decline, notwithstanding he shall answer other 
 parts of the Bill from which he might have protected him- 
 self by demurrer, (s) 
 
 XXXIX. THAT where the defendant shall, by his 
 answer, suggest that the Bill is defective for want of 
 parties, the plaintiff shall be at liberty, within fourteen 
 days after answer filed, to set down the cause for argu- 
 ment upon that objection only ; and the purpose for 
 which the same is so set down shall be notified by an 
 entry, to be made in the Registrar's Book, in the form 
 or to the effect following; (that is to say,) " Set down 
 upon the defendant's objection for want of parties ;" 
 and that where the plaintiff shall not so set down his 
 
 (y) See Appendix Y. p. 25. (z) See Appendix Z. p. 26.
 
 14 
 
 cause, but shall proceed therewith to a hearing, notwith- 
 standing an ohjection for want of parties taken by the 
 answer, he shall not, at the hearing of the cause, if the 
 defendant's objection shall then be allowed, be entitled 
 as of course, to an order for liberty to amend his Bill 
 by adding parties ; but the Court, if it thinks fit, shall be 
 at liberty to dimiss the Bill, (a) 
 
 XL. THAT if a defendant shall, at the hearing of a 
 cause, object that a suit is defective for want of parties 
 not having by plea or answer taken the objection, and 
 therein specified by name or description the parties to 
 whom the objection applies, the Court (if it shall think 
 fit) shall be at liberty to make a decree saving the rights 
 of the absent parties, (b) 
 
 XLI. THAT where a defendant in equity files a cross 
 Bill against the plaintiff in equity for discovery only, 
 the costs of such Bill, and of the answer thereto, shall be 
 in the discretion of the Court at the hearing of the ori- 
 ginal cause, (c) 
 
 XLII. THAT where a defendant in equity files a cross 
 Bill for discovery only against the plaintiff in equity, 
 the answer to such cross Bill may be read and used by 
 the party filing such cross Bill, in the same manner, and 
 under the same restrictions, as the answer to a Bill 
 praying relief may now be read and used, (d) 
 
 XLIII. THAT in cases in which any exhibit may by the 
 present practice of the Court be proved viva voce at the 
 hearing of a cause, the same may be proved by the 
 affidavit of the witness who would be competent to prove 
 the same viva voce at the hearing, (e) 
 
 XLIV. THAT where a defendant makes default at the 
 
 (a) See Appendix A. A. p. 26. (d) See Appendix D. D. p. 26. 
 (6) Ibid. B. B. p. 26. (e) Ibid. E. E. p- 26. 
 
 (c) Ibid. C. C. p. 26.
 
 15 
 
 hearing of a cause, the decree shall be absolute in the 
 first instance, without giving the defendant a day to 
 show cause, and such decree shall have the same force 
 and effect as if the same had been a decree nisi in the 
 first instance, and afterwards made absolute in default 
 of cause shown by the defendant, (f) 
 
 XLV. THAT every decree for an account of the per- 
 sonal estate of a testator or intestate shall contain a 
 direction to the Master to inquire and state to the Court 
 what parts (if any) of such personal estate are out- 
 standing, or undisposed of, unless the Court shall other- 
 wise direct, (g) 
 
 XLVI. THAT a creditor, whose debt does not carry 
 interest, who shall come in and establish the same before 
 the Master, under a decree or order in a suit, shall be 
 entitled to interest upon his debt, at the rate of 4< per 
 cent, from the date of the decree, out of any assets which 
 may remain after satisfying the costs of the suit, the 
 debts established, and the interest of such debts as by 
 law carry interest, (h) 
 
 XL VII. THAT a creditor who has come in and esta- 
 blished his debt before the Master under a decree or 
 order in a suit, shall be entitled to the costs of so esta- 
 blishing his debt, and the same shall be taxed by the 
 Master, and added to the debt, (i) 
 
 XLVIII. THAT in the reports made by the Masters of 
 the Court, no part of any state of facts, charge, affidavit, 
 deposition, examination, or answer, brought in or used 
 before them shall be stated or recited. But such state 
 of facts, charge, affidavit, deposition, examination, or 
 answer, shall be identified, specified, and referred to, so 
 as to inform the Court what state of facts, charge, affi- 
 
 (/) See Appendix F. F. p. 27. (A) See Appendix. H. H. 27. 
 (g) Ibid. G. G. p. 27. (t) Ibid. J. J. p. 27.
 
 16 
 
 davit, deposition, examination, or answer, were so brought 
 in or used, (k) 
 
 XLIX. THAT it shall not be necessary in any Bill of 
 Reviver, or supplemental Bill, to set forth any of the 
 statements in the pleadings in the original suit, unless 
 the special circumstances of the case may require it. 
 
 L. THAT in any petition of rehearing of any decree 
 or order made by any Judge of the Court, it shall not be 
 necessary to state the proceedings anterior to the decree 
 or order appealed from, or sought to be reheard. 
 
 LI. THAT the foregoing Orders shall take effect as to 
 all suits, whether now depending, or hereafter com- 
 menced on the last day of Michaelmas Term, One thou- 
 sand eight hundred and forty-one. 
 
 COTTENHAM, C. 
 LANGDALE, M.R. 
 
 (*) See Appendix K. K. p. 27.
 
 APPENDIX. 
 
 (A. Orders Nos. i. n. in. iv. v.) No person is to 
 appear, or act, either in person, or by Solicitor or Counsel, 
 or to take any proceeding whatever in the Court of Chan- 
 cery, either as plaintiff, defendant, petitioner, respondent, 
 party intervening or otherwise, until an entry of the name 
 of his Solicitor, or his Solicitor's agent, if there be one, or 
 if he act in person, his own name and address shall have 
 been made (5th Order) in an alphabetical book kept for 
 that purpose at the Six Clerks' Office ; and every Solicitor, 
 before he practises in the said Court, either in his own 
 name, solely, and not by an agent, or as such agent, is to 
 cause to be entered in such Alphabetical Book so kept for 
 that purpose at the Six Clerks' Office as aforesaid, his 
 name and place of business, or some other proper place in 
 London, Westminster, or the Borough of Southwark, or 
 within two miles of Lincoln's Inn Hall, where he may be 
 served with the documents mentioned in the Orders, n. and 
 in. ; and as often as he shall change his place of business, 
 or the place where he may be served, he is to cause a like 
 entry to be made in such book, and the aforesaid docu- 
 ments (where personal service is not required) are deemed 
 sufficiently served, if the document or a copy thereof, as 
 the case may be, is left at the place lastly entered in such 
 book; but, if any Solicitor neglects to cause such entry to 
 be made, then the fixing up a copy of such document shall
 
 bedeemed a sufficient service on him, unless theCourt, under 
 special circumstances, shall think fit to direct otherwise. 
 
 These documents may also, by the consent in writing of 
 any Solicitor, be served upon him through the Post-office, 
 or otherwise, as may be agreed upon, such consent being 
 at any time revocable by a like notice in writing. If the 
 address of one acting in person is not within London, 
 Westminster, or the Borough of Southwark, or within two 
 miles of Lincoln's Inn Hall, (the services in such case not 
 requiring to be made personally), are deemed sufficient, if 
 made through the Post-office. 
 
 By the present practice subpoenas to appear to an 
 amended bill, to rejoin and to hear judgment; warrants, 
 orders and notices of motion (not requiring personal ser- 
 vice on a party) petitions, notes of attachment, of rules 
 having been entered to produce and to pass publication, 
 and a variety of other written communications are served 
 on the Clerks in Court. The central position of the 
 Six Clerks' Office, as regards the general body of London 
 Solicitors, and its contiguity to the other offices of the 
 Court of Chancery, have rendered such a mode of service 
 generally acceptable to the profession, and several witnesses 
 examined before the commissioners in 1824, testified as to 
 its convenience. If a warrant is taken out, attendance for 
 that purpose is required in Southampton Buildings; if 
 minutes, or a decree or order are to be obtained, they must 
 be sought for at the Registrar's Office in Chancery Lane ; 
 in all these cases the Six Clerks' Office presents, from its 
 position, the greatest facilities for service ; in the one 
 instance of the warrant ; in the other, of the notice to 
 settle the minutes, or to pass the order or decree. In 
 addition to its position the Six Clerks' Office also posses- 
 ses the advantages of books of easy reference, shewing on 
 whom the service requires to be made. 
 
 It is proposed to consider the alterations made by these 
 Orders as regards the question of service in three points 
 of view ; 1st, as to the facilities of service ; 2nd, as to ex- 
 pense ; 3rd, as to the security that the thing served will reach
 
 I 
 
 its intended destination. First, as to the facilities of service : 
 at present, suppose a clerk to have taken out a warrant 
 at the Master's Chambers, requiring to be served on 
 three parties, (the average number) ; he crosses over to the 
 Six Clerks' Office, fills up three blank copies of the warrant, 
 learns from his own clerk in Court on which of the other 
 clerks in Court these three copies are to be served, and effects 
 the service with the least possible delay. At the close of 
 the business of the Six Clerks' Office, and when the con- 
 stant interruptions arising from the continued inquiries 
 made by the Solicitors and their clerks have ceased, the 
 documents which have been served during the day, 
 are directed and forwarded to their proper destinations. 
 To those familiarly acquainted with the numerous suits 
 conducted at the respective seats of the Clerks in Court, 
 this business is despatched with great readiness ; but, 
 whenever the parties usually attending to this depart- 
 ment are accidently absent, and this duty devolves upon 
 others, who, although daily in attendance at the seat, are 
 less familiar with the names of the suits and the parties, 
 the search has been found both irksome and tedious. The 
 service of a warrant has been referred to as one example, 
 but the above remarks apply equally to the cases of other 
 services. It is not unusual, shortly before the close of the 
 office, to see the same clerks of some of the leading agency 
 offices in London making their accustomed services of 
 writs, warrants, orders, notices, &c. which are despatched 
 by them with the least possible delay. 
 
 It has been explained in what manner a warrant is now 
 served on three parties. Let us anticipate the course 
 under these new Orders. The Clerk must attend at the 
 Master's Chambers to take out his warrant, and he must 
 fill up his copies ; the chances are, that he will then have 
 to cross to the Six Clerks' Office to consult the Clerk in 
 Court's Book, on whom he is to make the services ; and 
 when he has obtained this information, instead of concluding 
 his labours by leaving copies of the warrants at the seats of 
 c 2
 
 the respective Clerks in Court, he may, and probahly will 
 have to apply to each of the seats of these Clerks in Court 
 for the name of the Solicitor for whom each is respectively 
 concerned. This will practically cause much delay ; for 
 although the party applied to may be satisfied that he 
 is engaged in the cause inquired after, he may not be able 
 to name for what party or for what Solicitor he acts, with- 
 out a reference to his book; and the Solicitor's clerk, 
 therefore, instead of obtaining the prompt off-hand answer 
 which can now be given, and leaving his warrant without 
 interrupting the attention perhaps at that moment occu- 
 pied with a prior claimant, must wait his turn before the 
 book of reference can be consulted. With this informa- 
 tion the clerk hastens to the Alphabetical Book, called the 
 Solicitor's Book ; and as the legal profession, partaking of 
 human infirmity, are sometimes given to procrastination (as 
 witness the never-failing press of business at the eve of 
 every long vacation), it is not unreasonable to suppose 
 that at many seasons of the year it may be a matter of 
 scramble amongst the thousands of Solicitors and their 
 clerks and assistants to get a sight of this much sought 
 after book. Imagine the dismay of the Solicitor's clerk at 
 the very moment he is congratulating himself on obtaining 
 the sought-for information, on ascertaining from the Alpha- 
 betical Book that the Solicitor of defendant A. lives in 
 Piccadilly, of defendant B. in Southwark, and of defend- 
 ant C. in Parliament-street. 
 
 It may be answered that a Solicitor can so keep his 
 own cause-book that he will not have to apply for infor- 
 mation to the Clerk in Court; that this will be so generally 
 is very doubtful ; and in the case of a new Solicitor coming 
 into a cause, or of Solicitors for creditors or purchasers, 
 or those not parties to the suit, the original objection 
 remains in full force. But admitting that in all cases it will 
 be unnecessary to consult the Clerk in Court's book, it still 
 leaves the other objections unanswered, and imposes on 
 the practitioner, who avails himself of this mode of service, 
 much additional trouble and a larger expenditure of time.
 
 Sndly. The next point is the consideration of the com- 
 parative expense of the two systems. The fee allowed for 
 each copy and service of a warrant is 1*. 6d. on the Clerk 
 in Court, and 2*. 6d. on the Solicitor ; of an order or notice 
 of motion or petition, 2s. on the Clerk in Court, and 2s. 6d. 
 on the Solicitor. By a return to the House of Commons, 
 it appears that about 60,000 warrants are taken out 
 annually from the different Masters' Offices; and it has 
 been estimated that each warrant returns an average of 
 about two and a half services, giving an excess of expense 
 for each service made on the Solicitor of 1*. beyond that 
 incurred by a service on the clerk in Court ; and such ser- 
 vices of warrants averaging every year about 150,000, 
 gives, as the annual excess of expense of the services of 
 warrants on Solicitors, beyond that of services on the Clerk 
 in Court, the sum of 7,500/. In the taxation of the 
 costs of a suit which, some years back, from their 
 amount, created much conversation in the profession, 
 the excess of expense on one taxation only, of services 
 of warrants on the Solicitors instead of the Clerk in Court, 
 (each warrant being served on thirteen parties) would have 
 amounted to about 50. The difference of expense 
 with regard to services of notices of motion and of orders 
 and petitions will also be very considerable, although 
 there are no means of arriving at an accurate result of the 
 amount. 
 
 Again, notices of settling minutes, of passing orders and 
 decrees, and notices of a similar nature, are served on the 
 Clerk in Court, and no fee is allowed at all for such ser- 
 vices ; whereas, if served on the Solicitor, some remunera- 
 tion must be made. It is conceived, as the ground why no 
 allowance is made for such services, as well as the fact of 
 so few fees being given by the Court for attendance at 
 the Six Clerks' Office, arises from the circumstance of 
 a Solicitor's business necessarily carrying him there so fre- 
 quently at all stages of the suit, thereby pointing out such 
 office as the fittest medium for service of all documents 
 not requiring personal service.
 
 3rdly. The next, and perhaps the most important con- 
 sideration is, which system is best calculated to insure the 
 greatest accuracy in the service, and the least intricacy 
 or difficulty in proving the same? Nothing can be more 
 simple than the system of services through the Clerk in 
 Court ; and if a warrant or other document miscarries, it 
 forms an exception to the generally admitted correctness 
 by which such transmissions are now made. 
 
 From the previous statement of the number of warrants 
 taken out annually from the Masters' Offices, and from 
 reflecting on the amount of writs, orders, petitions, notices of 
 motions, and other documents served through the Clerk in 
 Court, some slight idea of the number of documents trans- 
 mitted through the Six Clerks' Office may be formed, and 
 the Judges and the Bar may be fairly called as witnesses 
 to prove on how few occasions, compared to the amount 
 of services, the question of the regularity of a service has 
 been brought to the attention of the Court. 
 
 Not only is the transmission of documents served secure 
 and regular, but the proof of service is easily established, 
 and of familiar application with the Registrars and other 
 Officers of the Court who have to act upon such proofs ; 
 and if a service is disputed, this mode of transmission 
 affords a means of testing where the blame lies ; for on 
 reference to the seat at which the service is alleged to have 
 been made, if admitted, it may be ascertained whether the 
 neglect arose in the transmission of the document, or 
 whether the same has been overlooked at the Solicitor's 
 Office. 
 
 Let us consider the proposed alterations in these two- 
 fold points of view: A service is deemed sufficient if 
 made by leaving the document, or a copy, at the place 
 lastly entered on the Solicitor's books by the Solicitor of such 
 party ; or if any Solicitor shall neglect to cause such entry 
 to be made in the Solicitors' Book, as required by the 
 second of the said Orders, then the fixing up a copy of 
 any document for such Solicitor in the Six Clerks' Office,
 
 is to be deemed sufficient service on him, unless the Court 
 shall think fit, under the special circumstances, to direct 
 otherwise (Order m.); or, by written consent, these docu- 
 ments may be served through the Post (Order iv.); or if a 
 person, acting for himself, shall give an address not within 
 London, Westminster, or the Borough of South wark, or 
 within two miles of Lincoln's Inn Hall, then all service 8 
 on such person not requiring to be made personally, shall 
 be deemed sufficient, if a copy thereof be transmitted 
 through the Post-office to such address as aforesaid 
 (Order v.) 
 
 With respect to the two first modes of service, viz., the 
 one on the Solicitor, and the other to be effected by fixing 
 up a copy at the Six Clerks' Office, it may be observed that 
 the number of Clerks in Court is small, and their place of 
 being served, and their hours of attendance (a) fixed, but that 
 the Solicitors are a numerous body, and their residences 
 are constantly changing. The death of the Solicitor, the 
 dissolution of a partnership, the change of the Solicitor 
 dui'ing the suit, or his negligence in not registering his 
 change of residence, may any of them prevent a document 
 served from reaching its destination ; proceedings involving 
 serious results may be formed upon such services ; and the 
 Courts will be liable to be constantly applied to, and oc- 
 cupied to remedy the consequences arising from these 
 casualties. 
 
 The object of the Clerk in Court is, that the service 
 in all cases should be effectual ; but it may easily be 
 supposed that there are over-zealous or under-scrupu- 
 lous practitioners, who, when a march is to be stolen 
 upon their adversary, would rather comply with the letter 
 than with the spirit of the law, and who, instead of en- 
 deavouring to make a good service, would avail themselves 
 of the remissness of the adverse Solicitor in not entering 
 
 (a) If the service on Solicitors becomes general, it will be necessary 
 to fix the hours within which such services are to be made.
 
 8 
 
 his name in the Solicitor's book, and effect a service by 
 sticking up the document at the Six Clerks' Office, or in 
 any other manner most conducive to their purpose. 
 
 The Registrar will require proof that the place where 
 the service was effected, was at the place lastly entered on 
 the Solicitor's book by the Solicitor of such party, and 
 probably that such Solicitor continues to act for the same 
 party. 
 
 With respect to the mode of serving a solicitor who 
 neglects to cause the required entry to be made in the 
 Alphabetical Book, by fixing up a copy of the document in 
 the Six Clerks' Office, and which is to be deemed good 
 service, unless the Court think fit, under special circum- 
 stances, to order otherwise, many inquiries suggest them- 
 selves. Will it be necessary in every case to substantiate 
 this service by an order of the Court, or is the service to 
 be held good unless the Court direct otherwise? Whatis the 
 nature of the special circumstances ; and in what manner, 
 at what time, and by what party, are they to be brought to 
 the attention of the Court. An attachment for want of 
 appearance or answer to an amended bill is issued by the 
 plaintiff's Clerk in Court, without order on an affidavit of 
 the service of the subpoena ; this service may, in a case 
 where the Solicitor neglects to enter his name, be made by 
 fixing up the copy of the subpoena in the Six Clerks' 
 Office. Is the Court to be appealed to at all, or is the 
 Clerk in Court, waiving special circumstances, to issue a 
 writ, and if so, is he to be satisfied with the affidavit of 
 fixing up a copy of the subpoena, and of the non-entry of the 
 Solicitor's name, or is it expected that he personally should 
 satisfy himself of such non-entry? And suppose an error, 
 either in the party making the entry, or by a too hasty 
 search, against whom is the action for false imprisonment 
 to be brought ? Again, take the case of a Solicitor con- 
 cerned for one of many defendants, who has been guilty of 
 omitting to register his name, and assume that the plaintiff 
 applies for an order absolute to confirm a report which is
 
 9 
 
 a motion as of course, and that the order nisi as to such 
 negligent Solicitor has been served by affixing a copy 
 thereof at the Six Clerks' Office. Is this motion as of 
 course to be converted into a special motion as against this 
 one defendant, and are the special circumstances of the 
 service to be disposed of before the motion can be heard? 
 or take the case of a defendant having so served a negli- 
 gent plaintiff's Solicitor with an order nisi to dissolve 
 an injunction. Is such defendant to instruct his Counsel to 
 be prepared to sustain such service as a preliminary to 
 the usual motion of course ; and is it to be so, in the case 
 of payment or transfer of money or stock, or the deposit of 
 books and papers. Suppose a subpoena to hear judgment 
 to have been served on a defendant by fixing up a copy ; 
 when the cause is ripe for hearing, if such defendant make 
 default are the special circumstances of the service to be 
 discussed before the cause is allowed to proceed ? and if 
 the Court think fit to make order against the service, is 
 the plaintiff to go through his process again, and are the 
 co-defendants to have their cause delayed ? Before a plea 
 or demurrer, a petition, or motion, an original cause, or one on 
 farther direction can be heard, will it be competent for the 
 negligent party to show special cause against the service ? 
 Did the Court contemplate that the Serjeant-at-arms would 
 be able take a party into custody whose only notice of the 
 order nisi has been that the same has been stuck up for 
 four days in the Six Clerks' Office, surrounded, and perhaps 
 obscured by the mass of other neglected notices. 
 
 With respect to transmitting notices by the post the al- 
 teration is only partial. It has been and is now very usual for 
 Solicitors, who have confidence in each other, to agree to 
 make their services, either wholly, or in particular causes, 
 through the medium of the Post-office, and so long as they 
 preserve their integrity (and the instances of violation are 
 very rare) every advantage was obtained which is afforded 
 by these new Orders. But if the Solicitor proved faithless to 
 his agreement, the Court, although it would punish the So-
 
 10 
 
 licitor, would not recognize the service ; whereas by these 
 orders if a Solicitor gives his consent in writing that the 
 service of the documents may be made through the Post- 
 office such service is deemed sufficient, if made in such 
 manner as such Solicitor has so agreed to accept, but it is 
 competent for any Solicitor giving such consent at any 
 time to revoke the same by notice in writing. It is, there- 
 fore, clear that this rule has nothing to do with men of 
 honourable dealing, men who consider themselves bound 
 by arrangements entered into by them, but which cannot 
 legally be enforced : it only operates upon those who hav- 
 ing agreed to abide by a certain service would repudiate 
 it unless the same could be legally enforced. In consi- 
 dering the New Rules it will only be necessary to regard its 
 application to the cases of Solicitors who neither denying 
 an arrangement as to the mode of service, nor the com- 
 pliance of the opposite party with the terms of such com- 
 pact, yet refuse to be bound by it, on the ground of the 
 inability of the other party to enforce it. 
 
 Is a service through the Post-office likely to prove effi- 
 cacious in dealing with such persons ? Will they not 
 evade the rule as easily as they would have avoided their 
 compact ? Before these Orders, parties would not have 
 trusted them , now, perhaps, they may, thinking that by 
 their aid they may be enabled to bind them. In how 
 many ways may they not evade these Orders ? Suppose a 
 Solicitor to consent to accept service by the j ost, and after- 
 wards cease to be concerned in the cause, and to give no 
 notice to the opposite party of his withdrawal, and an im- 
 portant service to be made after he has ceased to be con- 
 cerned, will his consent bind his successor, or is the party 
 serving to lose the benefit of his process, or is the question 
 of the time of the withdrawal to be put in issue <f . Suppose 
 a notice really to miscarry, or a party to allege that it never 
 reached him, or that he had previously given a notice of 
 revocation, may not much valuable time be expended to 
 collect the truth from a mass of contradictory affidavits,
 
 11 
 
 and counter affidavits to enable the Court to decide upon 
 priorities of service or countermands. Again, suppose a 
 mutual agreement to transmit, by post, between plaintiff's 
 and defendant's Solicitors, and that one of them revoke the 
 consent, and not finding the name of the opposite Solicitor 
 in the Alphabetical Book, serves a document, by fixing 
 it up at the Six Clerks' Office. 
 
 As almost every service requires to be made within a 
 given time before the next proceeding, is the service to 
 be reckoned from the time of posting the document, or 
 from the time when it is received ? And if the latter, how 
 is the party posting the notice to prove the time of delivery ? 
 The Registrar, in drawing up an order on affidavit of ser- 
 vice by post, will require proof of an agreement that the 
 service was to be made through the post ; that the terms 
 of that agreement have been complied with, and that the 
 consent has not been revoked, and that the document was 
 not only posted, but received in due time. 
 
 In considering the question of proving service, it may 
 be asked, how far the cautious conveyancer will feel 
 satisfied in approving a purchase where the service of the 
 order nisi confirming the same has been made through the 
 Post-office, or by fixing up a copy thereof at the Six 
 Clerks' Office. 
 
 To the greater portion of the profession, the last men- 
 tioned alteration of legalizing the service through the post, 
 offers no advantage over the present practice, and it is 
 to be feared, that the order is not of such a nature as to 
 operate with effect on an evasive practitioner. 
 
 These different modes of service may, in many instances 
 lead to vexatious questions on the taxation of costs. Can 
 a party sending by the post, if an objection is taken, sus- 
 tain a charge for service beyond the postage ; and if he 
 can, at what rate? And will not the party claiming the en- 
 larged fee for service on the Solicitor be bound in every 
 instance, if required by the party paying the costs, to 
 prove that such service was so made.
 
 A further objection exists ; at present nearly all services 
 are effected through one office, and the machinery of that 
 office is equal to their due transmission. If the present 
 alterations should ever come into active operation, the call 
 for the exercise of this machinery, will, in a great measure, 
 cease, and its efficacy be proportionably decreased, even 
 this order still leaves a variety of services which must be 
 made through their ancient channel. Amongst these 
 are all the notices served from the examiners of the name 
 and abode of the witnesses tendered to them for cross 
 examination ; notices that decrees have been presented 
 for enrolment; rules to produce witnesses and to pass 
 publication ; notes calling for security for costs ; notes 
 of attachment for want of answers ; notices of every 
 appearance entered by a defendant of every answer, or dis- 
 claimer, of every replication, plea, or demurrer filed ; notes 
 calling upon par ties to join in commissions, and to strike com- 
 missioners' names, and a variety of other written com- 
 munications of a similar nature. 
 
 It may be urged that the mode of services prescribed 
 by these Orders, is not compulsory, and that there is 
 nothing contained in them to prevent parties availing 
 themselves of the old system of services through the 
 Clerk in Court, but considering the expense and trouble of 
 the Solicitors' Book, and the confusion incidentupon a two- 
 fold mode of service, the point is not likely to be urged. 
 In a mercantile view, it certainly possesses this advantage, 
 that where the services are to be made at distantly situated 
 places, the easiest mode can be resorted to, whereas if the 
 parties to be served live near each other then the more 
 profitable course can be adopted. In the progress of a suit 
 it often happens that warrants are taken out " to justify," 
 that is, if Solicitors go through a report at home or at 
 their respective offices, the length of which would carry 
 eight warrants, and only two have been exhausted at the 
 Master's Chambers, it is the practice to take out the re- 
 maining six warrants to justify their attendance ; the more
 
 13 
 
 profitable fee for serving these warrants will generally, 
 (especially if the parties to be served are numerous), 
 afford a remunerating return for the increased trouble. 
 
 In what manner is the fifth Order to be enforced ? Sup- 
 pose a bill or appearance to be tendered, is it competent 
 to the Officer of the Court to refuse to file the one or enter 
 the other until he has satisfied himself that the person 
 applying is within the pale of this rule? Is the Counsel, 
 before he applies for an injunction, or to dissolve one ; for a 
 writ of ne exeat, or to discharge it, to satisfy himself that 
 the party instructing him, has by the fifth Order, entitled 
 himself to sue or to be sued; and what amount of evidence is 
 to be considered satisfactory ? Is the Clerk of the Subpoena 
 Office, in an injunction suit (the subpoena then being usually 
 the first process), to withhold the writ until he has satis- 
 fied himself that this Order has been complied with ? And, 
 in any of the above mentioned cases, what is the penalty 
 of unintentional disobedience to the rule, and on whom is 
 it to fall? Suppose, in the hurry of business, an injunc- 
 tion should be obtained, and this rule not have been com- 
 plied with, is the injunction bad ; and can a party guilty 
 of a breach of it be committed ? Is an attachment for 
 non-appearance issued by a plaintiff under such circum- 
 stances irregular, and could an action be sustained for 
 issuing it ? How is a contumacious defendant, upon being 
 brought up by habeas, who opposes everything, to be 
 dealt with under this order ? 
 
 (B. vi.) An attachment, with proclamation and a com- 
 mission for rebellion, were required in certain cases, as 
 preliminary steps to taking a bill pro confesso, for want of 
 answer, and to issuing a sequestration for non-perform- 
 ance of a decree or order. The object of the alteration is 
 to remedy the delay occasioned by these processes to a 
 party prosecuting a contempt; but it seems doubtful 
 .whether this Order will not altogether prevent a plaintiff 
 taking a bill pro confesso, under what is called the old 
 practice, viz., in a case where the statute does not apply.
 
 14 
 
 The process was, attachment attachment with proclama- 
 tion, commission of rebellion, Serjeant-at-arms, seques- 
 tration, order to take bill pro confesso. On the return of 
 the attachment non est inventtts, the two next steps 
 cannot issue, being prohibited by this Order; and the 
 provision made by the ninth of these Orders does not 
 meet this case, nor does there appear to be anything to 
 warrant a Serjeant-at-arms proceeding on the return of 
 the attachment non est inventus, unless the conditions 
 mentioned in the ninth Order can be complied with ; the 
 plaintiff thereby losing the remedy he formerly pos- 
 sessed of taking the bill pro confesso, under the old 
 practice. 
 
 (C. vn.) A plaintiff might proceed against a defend- 
 ant for non-appearance ; 1st, when he absconded, by 
 taking the bill pro confesso against him under the statute ; 
 2ndly, by attachment and the subsequent processes of con- 
 tempt to sequestration. If the defendant was not taken there 
 the remedy stopped, unless the case came within the 
 statute, but if taken on any of the processes in certain 
 cases he was brought up by a Messenger, in others by habeas 
 corpus, and when brought up, an order was made for the 
 Clerk in Court to appear for him. But the simplest way 
 when he was in custody was, not to incur the expense 
 of bringing him up at all, but to serve him with a notice, 
 requiring him to appear pursuant to 1 Wm. 4, c. 36, and on 
 non-compliance, to obtain an order of course for a Clerk 
 in Court to appear for him. That part of the Order 
 which relates to the Messenger will confine the remedy of 
 a plaintiff against an infant defendant to that given him of 
 entering his appearance for such infant under the 
 eighth Order ; formerly an attachment was issued, but not 
 executed, and thereupon a Messenger was ordered. 
 
 (D. vin.) This Order may be regarded as affecting 
 a fundamental change in the constitution of the Court. 
 Previous to 5 Geo. 2, c. 25, the Court possessed no autho- 
 rity to enter an appearance for a defendant, and the
 
 15 
 
 power conferred by that Act was confined to the case of a 
 defendant brought into Court in custody, and 1 Wm. 4-, 
 c. 36, did not extend the jurisdiction of the Court beyond 
 the cases of defendants in custody. The 8th Rule, coupled 
 with some of the subsequent Orders, particularly the 21st, 
 confers upon the Court all the power which was possessed 
 as against a defendant served with subposna, and proved 
 to have absconded to avoid the subsequent process. Even 
 as against a defendant so proved to the satisfaction of the 
 Court to have absconded, an Order is made appointing a 
 day for him to appear, which is inserted in the Gazette a.nt\ 
 read in the Parish Church, and a copy posted at the Royal 
 Exchange before the bill can be taken pro confesso against 
 him ; and even then it is provided that upon the bill being 
 taken pro confesso, the Court may issue process to compel 
 the performance of such decree, either by an immediate 
 sequestration of the real and personal estate and effects of 
 the party so absenting (if any such can be found), or such 
 part thereof as may be sufficient to satisfy the demands of 
 the plaintiffin the said suit, or by causing possession of the 
 estate or effects demanded by the bill to be delivered to 
 the plaintiff, or otherwise, as the nature of the case shall 
 require ; and the said Court may likewise order such 
 plaintiff to be paid and satisfied his demands out of the 
 estate or effects so sequestered, according to the true 
 intent and meaning of such decree, such plaintiff first 
 giving sufficient security in such sum as the Court shall 
 think proper, to abide such order touching the restitution 
 of such estate or effects as the Court shall think proper to 
 make concerning the same, upon the defendant's appear- 
 ance to defend such suit and paying such costs to the 
 plaintiff as the Court shall order ; but in case such plaintiff 
 shall refuse or neglect to give such security as aforesaid, 
 then the said Court shall order the estate or effects so se- 
 questered, or whereof the possession shall be decreed to be 
 delivered, to remain under the direction of the Court either 
 by appointing a receiver thereof, or otherwise, as to such
 
 10 
 
 Court shall seem meet, until the appearance of the defend- 
 ant to defend such suit, and his paying such costs to the 
 plaintiff as the said Court shall think reasonable, or until 
 such Order shall be made therein as the Court shall think 
 just. 1 Wm. 4, c. 36, s. 3. 
 
 If any person against whom any decree shall be made, 
 upon refusal or neglect to enter his appearance, or appoint 
 a Clerk in Court or Attorney to act in his behalf, shall be 
 in custody or forthcoming, so that he may be served with 
 a copy of such decree, then he shall be served with a copy 
 thereof before any process shall be taken out to compel 
 the performance thereof, 1 Wm. 4, c. 36, s. 4. 
 
 If any decree shall be made in pursuance of the said Act 
 against any person being out of the realm, or absconding 
 as therein mentioned at the time such decree is pronounced, 
 and such person shall, within seven years after the making 
 such decree, return or become publicly visible, then, and 
 in such case he shall likewise be served with a copy of such 
 decree within a reasonable time after his return or public 
 appearance shall be known to the plaintiff; and in case 
 any defendant against whom such decree shall be made, 
 shall, within seven years after the making such decree, 
 happen to die before his or her return into his realm, or 
 appearing openly as aforesaid, or shall within the time last 
 before mentioned, die in custody before his or her being 
 served with a copy of such decree, then his or her heir, if 
 such defendant shall have any real estate sequestered, or 
 whereof possession shall have been delivered to the plaintiff, 
 and such heir may be found ; or if such heir shall be a feme 
 covert, infant, or non compos mentis, the husband, guardian, 
 or committee of such heir respectively ; or if the personal 
 estate of such defendant be sequestered, or possession 
 thereof delivered to the plaintiff, then his executor or ad- 
 ministrator (if any such there be) may and shall be served 
 with a copy of such decree within a reasonable time after 
 it shall be known to the plaintiff that the defendant is dead,
 
 17 
 
 and who is his heir, executor, or administrator, or where he 
 may be served therewith. 1 Wm. 4, c. 36, s. 5. 
 
 If any person so served with a copy of such decree 
 shall not, within six months after such service, appear and 
 petition to have the said cause reheard, such decree so made 
 as aforesaid shall stand absolutely confirmed against the 
 person so served with a copy thereof, his heirs, executors, 
 and administrators, and all persons claiming or to claim 
 by, from, and under him or any of them, by virtue of any 
 act done or to be done subsequent to the commencement 
 of such suit. 1 Wm. 4, c. 36, s. 6. 
 
 If any person so served with a copy of such decree, 
 shall within six months after such service, or if any person 
 not being so served, shall within seven years next after the 
 making such decree, appear in Court and petition to be 
 heard with respect to the matter of such decree, and 
 shall pay down or give security for payment of such costs 
 as the Court shall think reasonable in that behalf, the 
 person so petitioning, or his representatives, or any person 
 claiming under him by virtue of any act done before the 
 commencement of the suit, may be admitted to answer the 
 bill exhibited, and issue may be joined, and witnesses on 
 both sides examined, and such other proceedings, decree, 
 and execution may be had thereon, as there might have 
 been in case the same party had originally appeared, and 
 the proceedings had then been newly begun, or as if no 
 former decree or proceedings had been in the same cause. 
 1 Wm. 4, c. 36, s. 7. 
 
 If any person against whom such decree shall be made, 
 his heirs, executors, or administrators, shall not, within 
 seven years next after the making of such decree, appear 
 and petition to have the cause reheard, and pay down or 
 give security for payment of such costs as the Court shall 
 think reasonable in that behalf, such decree made as afore- 
 said shall stand absolutely confirmed against the person 
 against whom such decree shall be made, his heirs, ex- 
 ecutors, and administrators, and against all persons claim- 
 D
 
 18 
 
 ing or to claim by, from, or under him or any of them, 
 by virtue of any act done, or to be done subsequent to the 
 commencement of such suit ; and at the end of such seven 
 years, it shall and may be lawful for the Court to make 
 such further Order as shall be just and reasonable, accord- 
 ing to the circumstances of the case. 1 Wm. 4, c. 36, 
 s. 8. 
 
 So much for the caution of former times. By the present 
 Orders, all that the Court requires to be satisfied of, is 
 " that the subpoena has been duly served, and that no 
 appearance has been entered by the defendant ;" the 
 appearance is then ordered, and under the subsequent 
 orders, giving a plaintiff power of dispensing with an 
 answer, an ex parte decree may be obtained without diffi- 
 culty. There appears nothing to prevent a decree being 
 obtained against a defendant served with a subpoena just 
 as he is sailing to some distant part, before even he can 
 have an opportunity of communicating with his friends in 
 this country. 
 
 The plaintiff may still issue an attachment against a de- 
 fendant for non-appearance, and if the sheriff takes him 
 to gaol, may bring him up by habeas, or serve him with 
 notice to appear under 1 Wm. 4, c. 36. 
 
 (E. ix.) By 1 Wm. 4, c. 36, s. 1, it is provided, " that 
 when an attachment shall have duly issued against any 
 defendant, for contempt, in not answering the bill, and 
 such defendant shall not have been taken under such writ, 
 and the Sheriff of the county, into which such writ shall 
 have issued, shall make a return of now est inventus, to the 
 same, the Court shall upon motion, by or on behalf of the 
 plaintiff, (notice of which shall not be required), order that 
 the Serjeant-at-arms attending the Court, do apprehend 
 such defendant, and bring him to the Bar of the Court, to 
 answer his contempt ; and the same proceedings may, 
 thereupon, be had, as if such order had been made in man- 
 ner heretofore in use ;" and then the Act declares upon 
 what evidence the order shall be made, which has been
 
 19 
 
 followed in the present order. The 9th Order effects an 
 important saving, by dispensing with the Serjeant-at- 
 arms. 
 
 (F. x. and xi.) When a party was ordered to do any- 
 thing instead of serving him with a copy of the order, a 
 writ of execution thereof issued, a copy of which was served 
 on the party, and if he did not comply an attachment 
 issued against him. The circumstance of the writ of exe- 
 cution being on parchment, and under seal, has generally 
 procured for it more respect and attention then an order 
 on plain paper. As every other expense, except the 
 writ, will be incurred, the annual saving is expected 
 to be very trifling. Doing away with an attachment 
 for non-compliance with an order or decree, will ope- 
 rate prejudicially in many cases. An attachment issued 
 without order ; could be obtained at any season of the year 
 at a very small expense ; its execution was prompt, and 
 the cost of executing it moderate, and the party issuing it 
 had the power of controlling the process at any stage. 
 On the contrary, the Serjeant-at-arms, requires an order to 
 put him in motion ; to obtain this, it is not sufficient that 
 the Court is sitting, but the application must be made on 
 a certain fixed day ; the fees of the Serjeant-at-arms, 
 where a party is taken at a distance, or where he proceeds 
 against many persons, are so high as to make a party pause 
 before he incurs them, and may, in many cases, operate to 
 prevent him from proceeding. A party, in a doubtful case, 
 might hazard the expense of an attachment (10*. 6d.) 
 although he would not dare to put in force the expensive 
 machinery of the Serjeant-at-arms, for, be it observed, 
 that he is liable to the Serjeant-at-arms for his fees, 
 whether a caption is made or not, and must look for re- 
 payment to the party against whom he is proceeding; and 
 moreover, when once the order for the intervention of 
 this officer has passed the lips of the Judge, the con- 
 trolling power of such party ceases- for by order of 
 D 2
 
 20 
 
 4th Nov. 1674, revived, 13th July, 1685, and 12th June, 
 1694, It is ordered, that after any order for a Serjeant-at- 
 arms shall be granted by the Court, the Registrar shall, 
 on request, draw up the said order, and deliver the same 
 to the Serjeant-at-arms or his deputy, and no other person, 
 they paying for the same ; by which means he shall or may 
 endeavour to apprehend the party prosecuted, and bring 
 him into this Court to answer the said contempt, if he can ; 
 but if he cannot, his Lordship doth further order, that no 
 order for a Serjeant-at-arms, drawn up and passed by the 
 Registrar, be discharged, and the contempt thereupon, 
 without the Serjeant's fees be paid to him, and a certificate 
 under his hand testifying the same; and after the said 
 Order being so drawn up and passed as aforesaid, no pri- 
 vate or other agreement shall be made between the party 
 or parties, and the person or persons so standing in con- 
 tempt as aforesaid, or any other person on their or any of 
 their behalf, without such satisfaction shall be made, and 
 a certificate of the same shall appear to the Court (b). 
 
 It may further be observed, that having recourse to a 
 Serjeant-at-arms instead of an attachment does not ad- 
 vance the process to the attainment of a sequestration in 
 case of a party being taken into custody. 
 
 (G. xn.) In cases of payment of money or transfer of 
 stock into the name of the Accountant General, this order 
 will increase expense, as whenever a time is limited " after 
 service," the Accountant General will not act unless the 
 service is made and proved. 
 
 The insertion of a time in orders and decrees appears to 
 be of modern origin, as formerly the decree or order was 
 to be performed forthwith. 
 
 (H. xiii.) By 1 Wm. 4, c. 36, rule 19, it is provided, 
 that if any party obstinately retains possession of land or 
 other real property, after a writ of execution of a decree or 
 
 (b) Beam. Ord., 246.
 
 21 
 
 an order for delivery of possession has been duly served, and 
 demand of possession made, and upon an affidavit of such 
 service of the writ of execution, and of such demand made 
 thereunder, and a refusal to comply therewith on the part 
 of the person against whom the writ issued, the party 
 issuing it is at liberty, upon an affidavit of service of the 
 writ of executon, and demand of possession and refusal, to 
 obtain the usual order of course for the writ of assistance 
 to issue, and that the intermediate writ of attachment and 
 injunction farther commanding the party to deliver pos- 
 session, or any other writ shall be unnecessary. 
 
 The alteration made by this Order is substituting the 
 service of a copy of the decree or order in the place of a 
 writ of execution thereof, thereby saving the expense of 
 the writ of execution. 
 
 (J. xv.) This is a most valuable alteration in the prac- 
 tice In proceeding against those not parties to the suit, 
 under the old practice, it was necessary to obtain an order 
 for a certain thing to be done within a given time ; a se- 
 cond order within four days or that the party might stand 
 committed ; and a third order, that such party do stand 
 committed ; whereas by this order on the service of the 
 first order, the party can be proceeded against at once by 
 attachment for non-compliance. It is desirable that this 
 order should extend to Bankruptcy. 
 
 (K. xvi., xvii., xviii., xix.) The consideration of these 
 Orders falls more particularly within the province of the 
 Equity draftsman, but it may be observed, that in many 
 bills the plaintiff has not the means of knowing to which 
 interrogatories the defendant will be able to answer, and 
 that much more trouble will be required in the prepara- 
 tion of the interrogatories. It may also lead to multiply 
 separate answers, than which nothing can tend more to 
 the expense of a suit, as will appear when it is remembered 
 that the expense of a separate answer is not confined to its 
 preparation, but extends to the office copy, the abbreviat-
 
 22 
 
 ing, and the briefs for Counsel. These Orders appear rather 
 to provide against a system where each defendant takes a 
 copy of the bill, and not as in reality where only one copy 
 is taken by each defendant's Solicitor, without regard to 
 the number of parties for whom he appears and answers. 
 
 (L. xx.) A defendant is allowed ten weeks in a country 
 cause, and eight weeks in a town cause to answer an ori- 
 ginal bill, or bill of revivor and supplement, and seven 
 weeks in a country cause, and five weeks in a town cause 
 to answer an amended bill. The increased facilities of 
 communication between every part of England and the 
 Metropolis, appear to justify an equal allowance of time 
 to town and country defendants. But the country de- 
 fendants may still contend for an enlarged allowance, on 
 the grounds of his less easy access to Counsel, and of the 
 time consumed in obtaining a dedimus, and giving six days' 
 notice of its execution to the plaintiff, and sometimes in 
 procuring a Messenger to take charge of the answer to the 
 public office. When several defendants appear by one 
 Solicitor, and are able, from their interest, to join in one 
 answer, curtailing the time may have the effect of promot- 
 ing separate answers, or of increasing the number of 
 journies of the country Solicitor. 
 
 (M. xxi. and xxii.) Taken in connection with the 8th 
 Order, giving the plaintiff liberty to appear for an absent 
 defendant, this Order invests the plaintiff with a power 
 quite unknown to the ancient practice of the Court. Eight 
 days after service, the plaintiff may, by the 8th Order, 
 appear for a defendant, and eight weeks after, by this Order, 
 may dispense with such defendant's answer, and proceed to 
 a hearing without him, and obtain an ex parte absolute de- 
 cree, for by the 44th of these Orders, the decree nisi, 
 where defendant makes default, is converted into an ab- 
 solute Order. In the case above mentioned, it is difficult 
 to say on whom the notice, required by this Order, is to 
 be served. Both in this and the 8th Order, there is a
 
 23 
 
 great want of accuracy. In the Sth, it is not defined 
 with whom the plaintiff may cause an appearance to be 
 entered for defendant, whether by his own clerk in Court, 
 or by the junior clerk in Court, and in this Order, it is 
 not stated by whom the note is to be filed, and the service 
 is directed to be made in the same manner as a subpoena to 
 rejoin is now served. A subpoena to rejoin is now served 
 through the Clerk in Court. Is this rule to be excepted 
 from the other writs to be served on the Solicitor, and by 
 fixing up a copy or by transmission through the post ? 
 
 (N. xxiii.) It is much to be feared that the good in- 
 tentions which dictated this Order, will not be realized, and 
 that this Order, instead of working the reformation intended, 
 will, in many cases, produce a scource of increased ex- 
 pense. Supposing a plaintiff to file a bill against a num- 
 ber of parties answering the description of this Order, and 
 having similar interest; according to the present practice, 
 they might have appeared by one Solicitor, and then, 
 however numerous, would have only taken one office copy 
 of the bill, but what is there now to prevent a plaintiff's 
 Solicitor from serving each of them with a copy of the bill 
 without the interrogatories. Again, it is very common for 
 formal parties to appear by the same Solicitor as those hav- 
 ing the greatest interest, in such case, one copy would have 
 sufficed, but now the interested party will take the office 
 copy bill, and the plaintiff's Solicitor will serve the formal 
 defendant with a copy less the interrogatories. Again, as the 
 defendant is to be bound by the proceedings, no amendment 
 whatever can be made in the bill without such amended 
 bill being served on such formal defendant, and suppose 
 the defendant to wish to answer, as the copy served did 
 not contain the interrogatories, he must take another copy. 
 
 (O. xxiv.; The same want of definiteness exists in this 
 Order. In what manner is the plaintiff to cause a memo- 
 randum to be entered in the Six Clerks' Office. Binding 
 a party by all the proceedings in a cause over which he is not
 
 24 
 
 at liberty (except under the penal consequences of being 
 visited with costs) to exercise any control, is so totally at 
 variance with that principle of the Court of Chancery 
 requiring that all parties concerned should be before the 
 Court, that it must be left to time to decide as to the result 
 of the experiment. 
 
 (P. xxv.) What is the meaning of " such defendants 
 shall, within the time limited by the practice of the Court 
 for that purpose, enter an appearance ?" What time is 
 limited ? A defendant is bound to appear within a certain 
 time after service of a subpoena, but no time is limited by 
 the practice of the Court for a defendant to appear after 
 service of the copy, bill and notice. 
 
 (Q. xxvi.) A defendant cannot decide on his own 
 responsibility. In what manner is an innocent defendant 
 to be repaid for the expense of consulting his Solicitor and 
 Counsel, to advise him how to act on being served with 
 copy bill. Considering the penalties in the shape of costs, it 
 is a matter of much responsibility to advise a defendant so 
 circumstanced. 
 
 (R. xxvii.) What is to be understood by being served 
 with notice of all the proceedings ? Suppose a petition to be 
 presented, is a copy of it to be served, or only a notice 
 of a petition having been presented ? 
 
 (S. xxvni.) What is the time limited ? See remarks 
 on twenty-sixth Order. 
 
 (T. xxix.) The question of the liability to pay costs 
 under this and the 26th and 27th Orders, will produce 
 many tough battles in Court, and may involve a Solicitor 
 in many a question of liability between him and his client. 
 I presume no prudent Solicitor will incur the responsibility. 
 (U. xxxi.) This appears a very beneficial alteration, 
 and it is to be wished that the Court had made an Order 
 that the probate of a will should be sufficient, in questions 
 touching real estate as well as concerning personal. The 
 expense of producing an original will is frequently most 
 grievous; and it becomes the more serious as it is
 
 25 
 
 required, both at the examination of witnesses, and also 
 in Court at the hearing of the cause. 
 
 (V. xxxu.) This may be regarded as an experiment in 
 the face of one of the leading principles of the Court, of 
 having all parties before it. It remains to be seen whether 
 the decrease in the number of parties will compensate for 
 an increase of separate suits. 
 
 (W. xxxni.) Supposing a defendant on the overruling 
 of a plea or a demurrer, to neglect to ask for time, or at the 
 expiration of the time allowed by the Court to require fur- 
 ther time, in each case a special application must be made to 
 the Court, as the Master will have no jurisdiction to grant 
 time in either. A counter application may be anticipated 
 on behalf of the plaintiff, under the 22nd Order, for 
 liberty to file a note. The Judges are little aware of the 
 expense of special applications in contested suits, and when 
 the motion cannot be speedily brought on for hearing. In 
 a bill of costs recently taxed, the writer feels confident 
 that the charges of only one Solicitor's attendances in 
 Court must have exceeded fifty pounds, and the motion 
 was by no means one involving any question of magnitude. 
 The suitor, harassed with applications and counter- 
 applications, will sigh for the simplicity of the old practice. 
 
 (X. xxxiv.) Before these Orders either party could 
 set down a demurrer or plea, and therefore there existed 
 no cause of complaint. By this Order the plaintiff is 
 within twelve days from the expiration of the time allowed 
 to the defendant for filing such demurrer, (not from the 
 time of filing,) to cause the same to be set down. A 
 defendant has twelve days to demur; suppose demurrer 
 filed on the fourth day, will the plaintiff not have twenty 
 days to set it down ? Why should the expense of setting 
 down a plea or demurrer be thrown upon the plaintiff? 
 How is this order to be complied with in vacation ? 
 
 (Y. xxxv.) The time allowed for filing a plea is the 
 same as an answer, viz., eight weeks. Suppose one filed
 
 26 
 
 within one week, seven weeks will therefore remain unex- 
 pired of the time allowed for filing such plea. Under the 
 words of the Order will not the plaintiff be entitled to the 
 seven weeks, and the three weeks to set down the plea. 
 
 (Z. xxxvi. xxxvu. xxxvni.) These rules are calculated 
 to simplify pleading, and remove from it many technical 
 difficulties. 
 
 (A. A. xxxix.) This order is intended to remedy the 
 defect of an abortive hearing, on account of the cause 
 standing over for want of parties. Is the cause to be 
 heard on the defendant's objection for want of parties only, 
 as between such plaintiff and defendant, or are the co- 
 defendants, if any, to assist in such hearing ? If the point is 
 only to be contested between the defendant raising the ob- 
 jection and the plaintiff, and the decision is for the plaintiff, 
 is a co-defendant, to be bound by such decision, and 
 precluded from raising the objection, or, suppose the 
 answer of A. to raise the objection, and the cause to be 
 set down on such objection, but before disposed of, that 
 defendant B. by his answer, raises the same point; 
 in what way is such last objection to be disposed of. The 
 short time, viz. fourteen days within which the cause is to be 
 so set down, will render the assumed case of more fre- 
 quent occurrence. 
 
 (B.B. XL.) In many cases, this order is likely to 
 prove of benefit to the suitor, notwithstanding the absent 
 parties will have a right to have the cause heard again ; 
 although doubtless they will frequently acquiesce in the 
 decision pronounced in their absence. 
 
 (C. C. XLI.) This is a very beneficial alteration ; is 
 there any objection to extending it to all bills of 
 discovery ? 
 
 (D. D. XLII.) Query, in what manner does this alter the 
 present practice ? 
 
 (E. E. XLIII.) This will save expense and the trouble 
 of the attendance of witnesses.
 
 27 
 
 (F. F. XLIV.) If this Order stood alone it would appear 
 to effect a beneficial alteration, but taken in connexion 
 with some of the previous Orders in certain hands it may 
 be dangerously used. By the practice before these 
 Orders, the plaintiff took such decree nisi, as he could abide 
 by, and the evidence was not entered as read ; is this to 
 be followed in case a defendant makes a default, or will 
 the Court pronounce a decree ? 
 
 (G. G. XLV.) This appears a beneficial alteration. 
 
 (H. H. XLVI.) It may be doubted whether this Order 
 will work well, and whether it will not prove, in cases of 
 solvent estates, a means of much diminishing any surplus 
 that may remain, as the cost of the proceedings to carry 
 it into effect are likely to be heavy, compared with the 
 object to be attained. Can the intention of the Order be 
 carried out without an additional application to the Court, 
 beyond that now required? 
 
 (J. J. XLVII.) If by taxing the costs by the Master is 
 meant that the Solicitor of the creditor is to bring in a bill, 
 of which the Solicitors in the cause are to take copies, 
 and attend the taxation, this will be a most objectionable 
 Order. The average expense of establishing an unop- 
 posed simple contract creditor's charge in the Master's 
 Office is between 50*. and 60*., and the expense of taxing 
 each creditor's costs would average upwards of 40*. Why 
 not allow 55*. to be added at the end of the creditor's 
 charge, unless, on the allowance of the charge, the Master 
 should direct the creditor's costs to be taxed, which would 
 provide for cases of contested claims. By this Order, the 
 " costs are to be added to the debt." If the assets are 
 not sufficient to pay the debt in full, are these costs to 
 abate, or are the costs to be added to what shall be found 
 due to the creditor as his apportionment on the amount of 
 his debt ? 
 
 (K. K. XLVIII.) In preparing a brief on further direc- 
 tions, the ordering part of decree or order of reference
 
 28 
 
 and the Master's report (exclusive of the schedule) were 
 furnished to Counsel. Will not the mode of preparing 
 a report pursuant to this Order render it necessary that 
 the Judge and Counsel should be furnished with copies 
 of the proceedings before the Master ? 
 
 (XLIX. and L.) These Orders are calculated to save 
 expense. 
 
 HINTS FOR REFORM. 
 
 IN considering the question of Legal Reform nothing can 
 afford greater pleasure than to have to speak in the past 
 tense of the greatest grievance under which the suitor 
 laboured in the Court of Chancery as an evil which once 
 existed, but for which an adequate remedy has now been 
 provided. The appointment of two additional Judges to 
 the Court may be regarded by the suitors as the greatest 
 boon which could have been bestowed upon them. The 
 improvements in the practice of the Court since 1828, had 
 removed most of the impediments which prevented a 
 plaintiff from being able to set down his cause for hearing, 
 and any one who will take the trouble carefully to ex- 
 amine the effect of these alterations will be surprised at 
 the extensive causes of delay which they have removed. 
 But the increased rapidity with which the cause advanced at 
 its earlier stages only tended to incumber the already over- 
 whelming arrear of unheard causes. In vain the Judges 
 overtaxed their energies in endeavouring to keep down the 
 constantly increasing accumulation. The evil strengthened
 
 term by term and year by year, until the Solicitor could 
 give his client no hope of obtaining any attention to his suit 
 until two or three years after it had been set down. When 
 funds were abundant desperate remedies were resorted to, 
 and the opinion of the Court was sought by means of in- 
 terlocutory applications. However successful these might 
 have been in individual cases, they added another cause 
 to the general delay. Some causes have been in the daily 
 paper, and perhaps even partially heard, but from these 
 sources of interruption and the pressure of other busi- 
 ness, sometimes remained undisposed of at the end of 
 months. What a source of vexation to the suitor, what 
 a fertile field of delay and expense. And yet there was 
 a hesitation about appointing additional Judges, and it 
 is only after repeated struggles that a bill has been 
 passed. The public have a right to the reasonable exer- 
 tions of the Judges ; they more than fulfilled this ; they la- 
 boriously occupied themselves to a far greater extent than 
 the suitor had a right to expect, and to the risk of injuring 
 that calm state of mind so necessary to accurate judgment ; 
 still the result was arrear. In every other position of 
 life the remedy would have been clear, and additional 
 force would have been applied, but an outcry was raised 
 at the expense ; expense indeed ! why, the suitor paid in 
 further fees and refresher fees to his Counsel in fees for 
 attending Court to his Solicitor, in term fees, and expenses 
 caused by abatements, and charge of interest in the shape 
 of bills of revivor and supplement, over and over again, 
 more than will repay every expense of the new Judges, 
 and their Courts and Officers. 
 
 Not only was the positive delay a great evil, but the 
 result produced on the habits of the practitioner, was 
 equally prejudicial. All the zeal and energy which cha- 
 racterized the early progress of the cause might be natu- 
 rally supposed to evaporate during its years of probation 
 in the Registrar's Book, and the fire so smothered was 
 with difficulty kindled again when the cause really came
 
 30 
 
 before the Court ; whereas, if the cause had obtained a 
 speedy hearing the original impulse would have been kept 
 in action. 
 
 There has been no subject more fully discussed than 
 the benefit of the union of the political and judicial offices 
 in the Lord Chancellor, tt is not the intention here to 
 continue the argument, except so far as to endeavour to 
 show that two of the grounds for a severance of these 
 offices have not necessarily any direct bearing upon the 
 question. The objections alluded to, are the inconvenience 
 sustained by the suitor on every change of the custody of 
 the Seals ; and the fact of an appeal lying frequently to 
 a Judge of less experience in Equity than the Judge 
 against whose decree the appeal has been lodged. That 
 these defects call for revision is admitted on all hands ; but 
 the severance of the twofold office of the Lord Chancellor 
 does not appear at all to follow from such a result. 
 
 Since Lord Eldon resigned, how frequently has the cus- 
 tody of the Great Seal changed hands; and every change 
 has been productive of a mischief to the suitor, of which the 
 public at large and the Legislature know but little, and of 
 the extent of which even the Judges of the Court are only 
 imperfectly apprized. Imagine the case of a suitor whose 
 whole fortune is involved in litigation, the position of 
 whose family in society, perhaps even their subsistence, 
 is dependent upon the issue of a pending cause. Imagine 
 him patiently watching each slow progress of the suit, 
 sustaining himself and his children by the liberality of 
 friends or by the dangerous aid of the money lenders. As 
 months pass away the kindness of friends grows less 
 warm and the usurer more hard in his exactions; but 
 still hope, the last, best human friend of the miserable, 
 cheers him on, by pointing to him a not far distant period 
 when the promises of success given him by his profes- 
 sional advisers shall be realized. Imagine him to have 
 passed through weeks, months, nay, years of alternate 
 expectations and disappointments, one day feeling the 
 sickening of hope deferred, another day only re-assured
 
 31 
 
 to be again sunk lower in despondency. Imagine him to 
 have survived all the delays arising from the deaths and 
 births of parties, from bankruptcies, insolvencies, from 
 transfers and assignments of interest ; to have examined 
 his witnesses before the examiner and before commis- 
 sioners in the country, and in regions far distant 
 from the jurisdiction of this Court. Imagine him, after 
 he has seen his cause actually placed in the daily list for 
 hearing, tortured in watching its eccentric motion, ad- 
 vancing a step one week and retrograding the next, so as 
 sometimes to be more distant at the end than at a com- 
 mencement of a term. Fancy the long desired, though 
 dreaded, day to have arrived, the Registrar calls the 
 cause, the Junior opens the pleadings ; the Queen's 
 Counsel and their Junior appear in long array for plain- 
 tiffs and defendants, and day after day is consumed, and 
 every point of evidence and of law is more than once 
 pressed upon the attention of the Judge, the reply 
 closes, judgment is promised, hope seems already 
 realized, the Prime Minister resigns, the Administra- 
 tion goes out, the official functions of the Chancellor 
 cease, and the whole cause has to be heard again. 
 
 The profession are fully aware that this is no imaginary 
 or overstated case, but borne out by a multitude of analogous 
 instances. How satisfactory a remedy would it be if it was 
 the law fora retiring Lord Chancellor, although no longer in 
 possession of the Seals, to be enabled to give his judgment 
 in every case which had been heard before him without 
 the consent of parties, and such a rule would remove one 
 of the most substantial objections to the twofold office of 
 Lord Chancellor as at present constituted. 
 
 Another serious objection is to the appellant jurisdiction 
 as at present existing. Nothing appears more unsatis- 
 factory than that one man should alone have the power of 
 reversing the deliberate judgment of another, unless it can 
 be shown that the former must of necessity be in pos- 
 session of superior judicial qualifications. The great
 
 32 
 
 abilities of many of our Chancellors have tended to conceal 
 this defect in the appellant jurisdiction, but history clearly 
 proves the existence of other Chancellors, who were 
 totally unfit to compete with the Masters of the Rolls of 
 those days, either in legal experience or legal attainments. 
 The present accession of Judges to the Court of Chancery 
 appears to afford facilities for the appointment of a Court 
 of Appeal more calculated to obtain the confidence of the 
 country. It is submitted that the Lord Chancellor, the 
 Judge against whose decree the appeal is brought, and 
 one of the other Judges of the Court might form such a 
 tribunal ; their united judgment would give weight to 
 their opinions, and produce uniformity of decision and 
 practice more than compensating for the absence of the 
 puisne Judges from their own Courts. The subject is 
 one of paramount importance, and a rich harvest of fame 
 must be gathered by the Judge who shall remodel the 
 appellant jurisdiction. 
 
 The taxation of costs appears to be the subject next in 
 importance; it is not proposed here to enter into the 
 question of the propriety of appointing taxing officers, 
 although the writer's opinions are decidedly opposed 
 to such a change, on the ground that the present system 
 is admitted to work well; is productive of no delay ; and 
 is less expensive than would be a sufficient number of 
 taxing officers ; and also from the advantage which a remu- 
 neration in proportion to the labour bestowed always 
 possesses over payment by salary, to an officer not directly 
 before the public. The alteration suggested is not in the 
 officers who administer the law, but in the law itself. The 
 principle upon which the allowance of costs to be paid by 
 a losing party should be regulated, appears to be such a 
 scale, that while on the one hand it shall not by its excess 
 promote litigation, shall not, on the other, be so inade- 
 quate as to operate as a denial of justice. The adherence 
 to charges and rules of taxation, framed upon ancient 
 precedent, which, however applicable to former times, are
 
 33 
 
 now wholly unequal to meet even the outlay of the present 
 clay, tend to fix upon the innocent party who gains his 
 suit the most vexatious and burdensome penalties, in the 
 shape of extra costs, and no position can be more painful 
 to a conscientious practitioner than thus to heavily tax 
 the purse of a client whom the Court has pronounced to 
 be free from blame. Can anything be more calculated to 
 depreciate a profession than the constant recurrence of 
 such applications ? A party may successfully resist an 
 unjust claim ; the claimant may be ordered to pay the 
 winning party his costs, as between party and party ; the 
 bill of costs of the Solicitor may be so moderately charged 
 that it cannot be impeached, and yet the innocent de- 
 fendant to an unjust demand is saddled with costs, 
 frequently to a great amount beyond those which he can 
 recover from the plaintiff. Is not this oppression ? Does 
 it not operate as a denial of justice ? In a recent case a 
 legatee was compelled to file a bill against an executor for 
 his legacy, which the executor defended ; a decree was 
 pronounced against the executor, and the Court marked 
 their sense of his misconduct by ordering him to pay 
 costs; he appealed, and was again defeated, and with 
 costs, and yet the extra expenses payable by the plaintiff 
 to his Solicitor were so heavy as nearly to exhaust the 
 legacy, which was considerable. 
 
 Some of the Orders of 1828, and subsequently, have 
 applied partial remedies to isolated instances, by increasing 
 the costs of pleas and demurrers, amendments of bill, 
 insufficiency of answers, and what are technically called 
 costs of the day, but the general principle remains without 
 remedy. This may be illustrated by a few examples. 
 
 A legatee applied to an executor to pay him his legacy ; 
 the executor refuses, and the legatee consults a Solicitor, 
 and instructs him to file a bill; the Solicitor requires 
 either an extract, or a copy of the will; the legatee has 
 neither ; the Solicitor either attends and makes a search, 
 and carries away a sufficient extract, or procures a copy of
 
 34 
 
 the will. If his costs are taxed, as between party and party, 
 the items for the extract, or copy of the will, and his 
 attendance for same, are taken off, on the ground that they 
 are included in the 13s. 4</. allowed to him as instruc- 
 tions for bill. In vain it is urged upon the taxing officer 
 that the search and extract were necessary ; perhaps he may 
 tell the Solicitor that the client ought to have done it him- 
 self, although as incapable of understanding a legal instru- 
 ment as of swimming across the Thames; or the necessity 
 of a copy of the will may be conceded, from the suit de- 
 pending upon a nice construction of the same, and yet the 
 taxing officer can give no better reason for the disallow- 
 ance than that the item is not costs of suit as between party 
 and party. The same rule of taxation applies as to all 
 deeds. The bill being filed, it is necessary to serve a sub- 
 poena on defendants living at remote residences, one in 
 Yorkshire, another in Cornwall, a third in Sussex, and a 
 fourth at Carlisle ; to effect this it is necessary to employ 
 correspondents at each place, and unless the defendant 
 lives near the correspondent, an average charge of 30*. at 
 least is made for each service, or 61. on the four defend- 
 ants. Of this 5/. is taxed off as between party and party, 
 the charge for each country service being 5s., and al- 
 though proof may be tendered of the impossibility that the 
 service could have been effected in any cheaper way, the 
 sufferer must rest satisfied with the assurance that 5*. is all 
 that can be allowed for serving a subpoena even in a country 
 cause. 
 
 A country defendant neglects to enter his appearance ; 
 it becomes necessary to issue an attachment against him. The 
 country correspondent is applied to for an affidavit of ser- 
 vice of subpoena, which is obtained at an expense of not less 
 than 15*- ; this affidavit is taken to the Clerk in Court, who 
 files it, and makes out an attachment at an expense of 7*. 2d. 
 for attachment, (with an extra charge of 3*. 6d. if a pri- 
 vate seal,) and 3*. 4</. for filing the affidavit; the attachment 
 is then put into the sheriff's hands, and the party seldom
 
 35 
 
 obtains the execution of it under 21. 2s. Thus the Soli- 
 citor has disbursed about 31. 7s. 6d., and all he can recover 
 from the defendant is 13*. 8d. In some cases these costs 
 amount to four or five times as much. A defendant puts in 
 an insufficient answer, and takes counsel before the Master 
 to support it. On a question of pleading a Solicitor could 
 hardly with prudence avoid employing Counsel; a copy of 
 the bill, answer, and exceptions, are made for Counsel, 
 31. 5s. 6d. is paid him for his first attendance, and two or 
 three guineas for every subsequent attendance. No prac- 
 tical man could say that the employment of Counsel was 
 unnecessary, but it is disallowed as between party and 
 party. 
 
 The case happens to be involved, and the pleadings are 
 laid before Counsel to advise on evidence, and a fee, vary- 
 ing from three to five guineas, is paid to such Counsel, 
 which is also disallowed, (c) The cause turns upon the 
 construction of a deed or will : a copy is furnished to 
 Counsel, or even by order to the Judge, yet both are dis- 
 allowed as between party and party. 
 
 Custom has rendered a consultation before hearing in an 
 involved case so universal, that no Solicitor would venture 
 to neglect it, yet it is disallowed in every case between 
 party and party. 
 
 A party is ordered to do a certain act, and a writ of 
 execution of the order is served upon him, unless he is 
 brought into contempt by an attachment, the costs of the 
 writ of execution are not allowed as costs in the cause. 
 Retainers, although allowed at law, are disallowed in 
 Chancery. 
 
 Suppose scientific evidence to be required, whether 
 before or after decree ; for example, that of a surveyor or 
 valuer of lands or houses, as to repairs ; of an engineer, in 
 a mining cause, although the question is entirely decided on 
 their evidence, yet the charges made by them for preparing 
 
 (c) In the last assumed rases the Solicitor's fees have also to he 
 added.
 
 36 
 
 themselves to give evidence, are disallowed. It frequently 
 happens that a Master entirely founds his report upon 
 the testimony of such scientific evidence, reciting it in 
 his report, and refusing to entertain the question with- 
 out it. 
 
 Suppose the Master decides upon allowing interroga- 
 tories for the examination of a defendant, a warrant is 
 taken out for him to put in his examination, and a time is 
 fixed for that purpose. If the examination be not put in 
 within time, or an extended time granted by the Master, 
 he issues a certificate of default, upon which the party 
 applies for the four day nisi order, for committal. If the 
 examination be filed before this last order is made abso- 
 lute, not only are the costs of obtaining it not personally 
 payable by the party to be examined, but also are not 
 costs of suit as between party and party. 
 
 Indeed, instances of this kind so crowd upon the 
 memory, that it is a hopeless task to attempt to enume- 
 rate them ; and, doubtless, the recollection of every profes- 
 sional reader will furnish him with numerous other cases 
 within his own practice. To attempt then to apply a 
 remedy to each individual case of hardship appears im- 
 possible, and the only course that suggests itself is, that, 
 as a general rule, all costs should be directed to be taxed 
 as between Solicitor and client, the Court reserving to 
 itself the power in certain cases, only to award costs as 
 between party and party. The exercise of this latter 
 discretion would operate as a powerful check against 
 vexatious or frivolous litigation. It should be observed, 
 that costs as between Solicitor and client, exclude many 
 allowances which a Solicitor could claim against his client; 
 thus, a Solicitor could fairly claim against his client the 
 costs occasioned by his contempt in not putting in his 
 answer, or by putting in an insufficient answer on account 
 of the want of proper instructions, but in neither case 
 could the client compel an opponent to pay such costs 
 even as between Solicitor and client. This scale of costs,
 
 37 
 
 while, on the one hand, it would leave untouched all ob- 
 jections to costs incurred ignorantly, or unwittingly, or ex- 
 travagantly, would relieve the taxing officer from the 
 necessity of disallowing charges which he felt had been 
 properly incurred, and remove from the system the stigma 
 of inflicting on an innocent and successful party the 
 burden of heavy extra costs. In the case of fixed per- 
 sonal costs, payable upon given proceedings, they would 
 require to be altered in detail. 
 
 In the Orders of 1841, an attempt is made to save 
 expense by decreasing the number of parties and rendering 
 it unnecessary for others to take active measures in certain 
 events. Amongst the highest class of practitioners much 
 of the evil sought to be remedied has been avoided, by 
 their uniting many defendants in one defence by the same 
 Solicitor. It is submitted that the greatest safeguard to 
 the suitor is by keeping up the character of the profes- 
 sion ; for neither orders nor vigilance can completely 
 defeat attempts to add to costs, in cases where the prac- 
 titioner wholly regards the amount of his bill, and con- 
 siders his client only in one light, viz., as part of his stock 
 in trade. 
 
 There is nothing which so much tends to produce such 
 a result, particularly amongst the young, as the dissimi- 
 larity between the charges made to clients by the most 
 respectable offices and those allowed by the rules of taxa- 
 tion. It is, and should be, an honest subject of pride in 
 the practitioner so to frame his charges that the disallow- 
 ance may be trivial ; but in certain cases, particularly in 
 agency matters, where the profits are divided between 
 the principal and agent, this can scarcely be done without 
 operating unjustly on the solicitor, inasmuch as some 
 allowances are an inadequate return for the labor be- 
 stowed. There can be no doubt that the inferiority of 
 pay to the agency Solicitor operates prejudicially, and that 
 it requires amendment. When it is recollected that
 
 neither the agent nor the country Solicitor is allowed one 
 penny for the extensive correspondence which takes place 
 between them, notwithstanding the time consumed, it 
 should predispose the Court to look favourably on their 
 other fees ; and yet these, in many proceedings, are so low 
 as to yield scarce any profit. The fee for drawing an affi- 
 davit is 1*. per folio ; for engrossing 4rd. per folio. The town 
 Solicitor does not find this by any means an extravagant 
 allowance for the pains required in its preparation ; and 
 when it conies to be divided between the country and 
 town Solicitors, thereby occasioning the necessity of a 
 second copy, the fee is far too small. In country suits, in 
 every case of drawing, an extra fair copy ought at least to 
 be allowed, and the term fee, and fee for letters, &c. to 
 the country Solicitor should be increased. The extent to 
 which these notes have already reached prevent the 
 subject from being further continued ; otherwise many 
 other instances of disproportionate allowance might be 
 shown. But before concluding, the Masters' Offices de- 
 mand a few words. 
 
 There is every prospect that the pressure of business which 
 the increased number of Judges is calculated to remove 
 from the Courts will be transferred to the Masters' Offices. 
 To render them equal to the discharge of this inundation 
 of duty, it seems essential than one additional clerk should 
 be appointed in each office to assist the chief clerk. This 
 has been tried at least in one office, the suitor has ob- 
 tained the benefit although the expense was borne by the 
 clerk. Every consideration of good policy and humanity 
 should co-operate to make the situation of the outer clerks 
 permanent, unless for misconduct, their present uncertain 
 tenure of office is much to be deplored. 
 
 There seems to exist a general feeling in the profession 
 that a partial payment by fees should be returned to in 
 the Masters' Offices. The suitor is likely to suffer severely 
 for want of this stimulus. On the subject of the Masters'
 
 Offices the reader is referred to " Facts and Suggestions re- 
 specting the Masters' Offices" which publication contains 
 much valuable practical information. 
 
 The system under which the fee fund is collected in all 
 the departments in the Court of Chancery is very discre- 
 ditable to the superintending vigilance of the Court. Of 
 individual want of energy or trustworthiness, not a suspi- 
 cion exists, but would it not disgrace any mercantile busi- 
 ness if money were allowed to be collected and accounts 
 passed without even an attempt to check or control their 
 accuracy ? 
 
 The 16th and 17th Orders of 1828 require to be 
 remodelled. 
 
 THE END. 
 
 LONDON . PRINTED BV RAYNER AND HODGES, 
 
 1 09, Fetter Lane, Fleet Street.
 
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 A 000004407 3
 
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