Page:Harvard Law Review Volume 12.djvu/178

158 . HARVARD LAW REVIEW. the only evil inflicted upon the defendant is that of not being per- mitted longer to obstruct the course of justice. While the relief thus afforded was better than nothing, it fell very far short of what was required, even to remove the particular evil which plaintiffs suffered from being unable to get their causes at issue, i. e., in a condition in which they could take their testimony. Eleven years later, a much more effective remedy for this evil was provided by the General Orders of Aug. 26, 1841,^ having the force of statutes ; ^ for it was declared that, as soon as any de- fendant incurred the penalties of contempt in not answering the bill, the plaintiff might file a note stating that he intended to pro- ceed with his cause as if the defendant had filed an answer, travers- ing the case made by the bill, and the plaintiffhad replied thereto, and served a subpoena to rejoin ; and that, such note having been filed, the service of a copy of it upon the defendant should have the same effect as the service of a subpoena to rejoin, namely, that of putting the cause completely at issue, and so enabling the parties to proceed to the taking of testimony. The plaintiff was, indeed, required to obtain leave of the court before filing such note ; but he was permitted to obtain leave without notice to the defendant, and upon proof that the defendant had incurred the penalties of contempt in not answering. Moreover, the necessity of obtaining leave of court was put an end to the following year.^ The note which was thus permitted to perform the threefold func- tion of an answer, a replication, and a subpcena to rejoin, acquired 1 Orders 2i and 22. See Cr. & Ph. 373-4. 2 The General Orders of Aug. 26, 1841, were made under the authority conferred upon the Court of Chancery by 3 & 4 Vict., c. 94 (amended by 4 & 5 Vict., c. 52), which recited that it would greatly contribute to the diminishing of expense and delay in suits in the Court of Chancery if the process, pleadings, and course of proceeding therein were in some respects altered, but that this could not be conveniently done otherwise than by Rules or Orders of the judges of the said court from time to time to be made, and that doubts might arise as to the power of the said judges to make such alterations as might be expedient without the authority of Parliament ; and accordingly sect, i au- thorized the Lord Chancellor, with the advice and consent of the Master of the Rolls, and the Vice-Chancellor, or one of them, by rules and orders to make such alterations ; and declared that such rules and orders should (subject to certain conditions which need not be stated) be binding and obligatory on the said court, and be of like force and effect as if the provisions contained therein had been expressly enacted by Parliament. This statute initiated a policy which has exerted a momentous influence, for it resulted, thirty-five years later, in the legislature's giving to the courts, as organized by the Judica^ ture Acts, the entire practical control over their own procedure. 8 Namely, by Order 5 of April 11, 1842. See i Ph. xv.