Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 199-204.
Matters of Practice are not to be known from books. What passes at a Judge's chambers is matter of tradition: It rests in memory. In cases of this kind, Judges must inquire of their officers. This is done in Court, every day, when the practice is disputed or doubted. It is in its nature, official. The officers are better acquainted with it, than the Judges. For my own part, neither my education, nor my walk in life before I came into this Court, ever led me into any knowledge of the practice of orders made by Judges in the vacation.
Lord Mansfield, Rex v. Wilkes (1769), 4 Burr. Part IV., 2366; id. 19 How. St. Tr. 1117.
We have here our own experience, and the report of our officer, a person of considerable experience, to guide us to the practice; and the practice of the Court is the law of the Court..
Crampton, J., Queen v. O'Connell and others (1843), 1 Cox, C. C. 392; 5 St. Tr. (N. S.) 61.
We have consulted the officers of the Crown Office, and we find that the practice is perfectly settled.
Wright, J., Aspinall v. Sutton (1894), L. R. 2 Q. B. D. [1894], p 350.
The practice of the Court forms the law of the Court.
Per Lord Kenyon, C.J., Wilson v. Rastall (1792), 4 T. R. 757.
Cursus Curiæ est lex Curiæ: The practice of the Court is the law of the Court.
3 Bulst. 53.
A Judge in chambers exercises an equity—not a capricious equity, but all the equities which might be exercised either at law or in equity in the days when the two were distinct. But he has much more machinery for exercising his discretion than either a Court of Chancery or a Court in banc would have had; and consequently it has always— at least for some years past—been considered that a great many things could be worked out in chambers, which probably no Court would have done, or which, if the Court of Chancery had done, it would have done at an enormous expense by affidavits and otherwise.
Lord Blackburn, Wallingford v. Mutual Society (1880), L. R. 5 App. Ca. 707.
I do not think that a Judge would wish any statement which he may have made in the course of a case, merely obiter and casually, to be treated as necessarily being an authority on the subject in question; but when a Judge has thought it necessary for the purpose of a case to make a deliberate examination of the practice of his Court, and to state such practice, I do not think the authority of such statement can be got rid of merely by arguing that it was not really necessary for the actual decision of the case. I think that such a statement if cited as an authority is entitled to great weight, though of course not binding on us as a decision.
I yield to authority. I think the practice of the Court of Chancery for more than one hundred years, and the authority of Judges of very great eminence, establish such a course of practice and such a chain of authority, that I do not think I am at liberty to assume that either the Court or those very learned Judges were in error as to their powers and jurisdiction.
Lord Halsbury, L.C., Attorney-General v. Marquess of Ailesbury (1887), L. J. (N. S.) 57 Q. B. 89.
Upon the motion I doubted, but my clerk has since reminded me that upon application I have made twenty such orders.
To my mind when a great Judge, a master of the whole subject, thinking it necessary for the decision of the case to carefully examine into and to state the practice, it is nothing to say as against that, that it was not necessary for the decision.
The business done at chambers is the most irksome part of the office of a Judge: but it is greatly for the benefit of the subject, and tends to the advancement and expedition of justice. It arises from the overflowing of the business of the Court, which cannot be all transacted in Court. The order of a Judge is subject to an appeal to the Court: but if acquiesced under, it is as valid as any act of the Court.
Lord Mansfield, Case of John Wilkes (1763), 19 How. St. Tr. 1121.
Every Court has the power to vary its own orders which are drawn up mechanically in the registry or in the office of the Court—to vary them in such a way as to carry out its own meaning, and where language has been used which is doubtful, to make it plain. I think that power is inherent in every Court. Speaking of the Courts with which I have been more familiar all my life, the Common Law Courts, I have no doubt that that can be done, and I should have no doubt that it could also be done by the Court of Chancery.
Lord Penzance, Lawrie v. Lees (1881), L. R. 7 Ap. Ca. 35.
I should regard it as certainly a novelty in our jurisprudence if the regular order of a learned Judge could be affected, or qualified, or altered in the slightest degree by what some subordinate officer of the Court thought proper to say in writing about it, even though in so doing he committed this additional irregularity—that to that private correspondence he affixed the seal of the Court.
Lord Halsbury, L.C., Stonor v. Fowle (1887), L. R. 13 Ap. Ca. 27.
The consolidating of several actions into one is certainly of very great public utility.
The constant and established proceedings of this Court are upon written evidence, like the proceedings upon the civil or canon law. This is the course of the Court, and the course of the Court is the law of the Court.
Hardwicke, L.C., Graves v. Budgel (1737), West, Ch. Rep. 45.
I think it is the safest course to stand by the established practice which has prevailed for a long period of time in this country than to indulge in the introduction of a novelty which might be highly dangerous.
Crampton, J., Queen v. O'Connell and others (1843), 1 Cox, C. C. 392.
It is much better to adhere to what has been the practice in the chambers of both divisions of the Court than that a single Judge should attempt to set up what he considers a better practice.
Stirling, J., Liverpool and Manchester Aerated Bread Co. v. Firth (1890), L. J. 60 C. D. 154.
It is the duty of the Court to repress sharp practice.
Bacon, V.-C, In re Swire; Mellor v. Swire (1882) L. R. 21 C. D. 649.
It is proper to inquire into the practice and precedents; and to see whether they have been uniform and concomitant.
Joseph Yates, J., Rex v. Wilkes (1769), 4 Burr. Part IV., 2548.
'Tis pity that the two Courts should differ in their practice upon an Act of Parliament.
Lord Mansfield, Belither v. Gibbs (1766), 4 Burr. Part IV. 2117. "Lord Mansfield, said there should be a uniformity between the two Courts, and he recommended it to Mr. Justice Aston, to take a note of this matter, and talk with the Judges of C. B. about it." Id. 2118.
In a case where there is not practice to support us, where we have not strong lights to guide us, and analogies so complete and satisfactory as not to admit of being mistaken, I cannot but think it the safest course for us to decline doing now, what it does not appear that this Court has ever done before.—Eyre, C.J., Jefferson v. Bishop of Durham (1797), 2 Bos. and Pull. 128.
I have no authority to alter the practice of the Court.
Lord Langdale, M.R., Balls v. Margrave (1841), 3 Beav. 449.
I will not, without any authority, suffer the constant practice of this Court for thirty years to be broke through.
Lord Mansfield, Cases adjudged in the Court of King's Bench (1773), Hilary Term, 13 Geo. III., Lofft. 155.
We are not absolutely bound to do it without some reason to excuse the going out of the regular course.
Lord Mansfield, Rex v. Wilkes (1770), 4 Burr. Part IV., p. 2531.
I do not think I can pass over the distinct words of Sir George Jessel, who knew practice as thoroughly as any Judge who ever sat on the bench.
Kekewich, J., Woolf v. Woolf (1898), L. R. 1 C. D. 347.
Practice does not make the slip of a Judge irrevocable.
Kekevich, J., Collins v. North British and Mercantile Ins. Co. (1894), L. R. 3 Ch. [1894], p. 235.
No man is entitled, as of right, to add to the evidence on a motion, after electing deliberately to open it.
Sir George Jessel, M.R., Jacobs v. Brett (1875), L. R. 20 Eq. Ca. 5.
Nothing is more apt to mislead than the suggestion of a supposed general practice, unsupported by any authority or decision.
Lord Mansfield, Reynolds v. Beering (1784), 3 Doug. 189.
Every rule may be waived by the person for whose benefit it is introduced.
My opinion is, that all general rules, touching the administration of justice, must be so understood, as to be made consistent with the fundamental principles of justice: And consequently all cases where a strict adherence to the rule would clash with those fundamental principles, are to be considered as so many exceptions to it.
Sir M. Foster, J., Sir John Wedderburn's Case (1746), Foster's Cr. Ca. 38.
General rules are widely established for attaining justice with ease, certainty and dispatch. But the great end of them being "to do justice," the Court ought to see that it be really attained.
Lord Mansfield, Rex. v. Phillips (1756), 1 Burr. Part P7. 301.
The Court must not depart from those rules which have been considered necessary for the due administration of justice.
Lord Langdale, M.R., Symonds v. The Gas Light and Coke Co. (1848), 11 Beav. 285.
To be sure the Court regularly adheres to regular judgments, if in support of the merits and justice; but if against the merits and justice they always get rid of the mere formality of them.
Lord Mansfield, Lord Mexborough v. Sir John Delaval (1774), Lofft. 310.
Nothing imports us more, than to see the judgments of the Court be duly executed.
Lord Mansfield, Rex v. Beardmore (1759), 2 Burr. Part IV. 795.
One great object of the Judicature Act would be defeated if, when a Judge says, "I remember what took place before me when the judgment was pronounced, and I am quite certain it was not intended to prejudice the defendant on this point," we were to say that the judgment which is quite capable of this construction is nevertheless to be construed otherwise. The scheme of the Judicature Act was that the Judge who had pronounced a judgment should have the carrying out of that judgment because he was more likely to understand it than another Judge who had not pronounced it.
Kay, L.J., Steers v. Rogers (1892), L. R. 2 C. D. [1892], p. 25.
An Order confirmed binds all the world: But when discharged, it is binding only between the parties concerned.
Page, J., Rex v. Inhabitants of Cirencester (1734), Burrow (Settlement Cases), 18.
If we go into presumptions upon special Orders, it will make them very uncertain.
Lord Hardwicke, Rex v. Inhabitants of Barton Turfe (1735), Burrow (Settlement Cases), 53.
The discretion of an experienced taxing master ought not lightly to be interfered with.
Cozens-Hardy, J., In re Maddock; Butt v. Wright (1899), L. R. 2 C. D. 591.
It is true that the decisions of the Privy Council are not theoretically binding on this Court; but in case of mercantile or admiralty law, where the same principles are professedly followed in the colonies and in this country, it is, to say the least, highly undesirable that there should be any conflict between the decisions of the Judicial Committee and those of the High Court or Courts of Appeal in this country.
Nathaniel Lindley, Baron Lindley, L.J., " The City of Chester " (1884), L. R. 9 Pro. Div. 207. See also per Sir James W. Colville, in Pitts v. La Fontaine (1880), L. R. 6 App. Cas. 483; reported in James William Norton-Kyshe, Dictionary of Legal Quotations (1904), p. 210.
We are not to issue process here as instruments or conduit-pipes, but judicially as Judges: and it will not be an objection to say, that we may award process at all hazards, and let the party grieved come after and plead to it; for we shall never grant an ill-writ, that the party may avoid it in pleading.
Holt, C.J., Lucy v. Bishop of St. David's (1702), 7 Mod. 59; reported in James William Norton-Kyshe, Dictionary of Legal Quotations (1904), p. 210.
There is no manner of doubt, but that a man may make use of legal process (legal in the ordinary course of proceeding) in such a manner as shall be a contempt to the Court, and a most grievous oppression.
Lord Mansfield, Anonymous (1773), Lofft. 328; reported in James William Norton-Kyshe, Dictionary of Legal Quotations (1904), p. 210.
Shall we relieve a man, that trusts when he needs not?
Holt, C.J., Tawney's Case (1703), 2 Raym. 1013; reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 219.
A Court of justice ought not to relieve a plaintiff, upon a ground of action immoral or illegal.
Lord Mansfield, Stotesbury v. Smith (1759), 2 Burr. Part IV. 926; reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 219.
It is a maxim in our law that a plaintiff must shew that he stands on a fair ground when he calls on a Court of justice to administer relief to him.
Lord Kenyon, C.J., Booth v. Hodgson (1795), 6 T. R. 409; reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 219.
I can only repeat what I said on a former occasion, and what almost every other Judge has said, that the right of retainer is a relic of old law, not founded on justice, and working the greatest possible injustice.
Moling, V.-C, Crowder v. Stewart (1880), 16 L. R. C D. 369.
Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 222-223.
A married woman having an estate settled for her separate use without power of anticipation can play fast and loose to a greater extent than if she were a feme sole.
There is no merit in a settlement: it depends upon positive law.
Wilmot, J., Rex v. Corporation of Carmarthen (1759), 2 Burr. Part IV. 873.
Settlements are supposed in law to be indifferent to paupers; though they are often in fact desirous of one in preference to another.
Wilmot, J., Rex v. Inhabitants of Burton-Bradstock (1765), Burrow (Settlement Cases), 535.
A Woman having a Settlement Married a Man with none: The Question was, he being dead, 'If that she had, was gone.' Quoth Sir John Pratt,—'Her Settlement Suspended did remain Living the Husband : But him dead, It doth revive again.'
Cited by counsel in Rex v. Inhabitants of Norton (1738), Burrow, S.C. 124, as the case of St. John Wapping, which the court notes it is unable to find in any printed book. A subsequent case apparently reversed this decision, for some verses are extant to this effect: "A Woman having Settlement, Married a Man with none: He flies and leaves her destitute, What then is to be done? "Quoth Ryder, the Chief Justice, In spite of Sir John Pratt, You'll send her to the parish In which she was a brat. "Suspension of a Settlement Is not to be maintained, That which she had by birth subsists Until another's gained.
What a solicitor is privileged from disclosing is that which is communicated to him sub sigiUo eonfessionis—that is to say, some fact which the client communicates to the solicitor for the purpose of obtaining the solicitor's professional advice and assistance.
Sir W. M. James, L.J., Ex parte Campbell, In re Cathcart (1870), L. R. 5 Ch. App. 703.
It is of the highest importance that a man should be able to consult his solicitor without fear.
Cave, J., Re Arnott (1899), 60 L. T. 109.
The secrets were imparted to the solicitor for the client's benefit, and should not be used to his detriment.
Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 231-32.
It is to my mind much to be regretted, and it is a regret which I believe every Judge on the bench shares, that text-books are more and more quoted in Court—I mean, of course, text-books by living authors—and some Judges have gone so far as to say that they shall not be quoted.
Kekewich, J., Union Bank v. Munster (1887), L. R. 37 CD. 54.
Brother, Viner is not an authority. Cite the cases that Viner quotes: that you may do.
Foster, J., Far v. Denn (1757), 1 Burr. Part IV. 364.
I must treat with reverence everything which Lord Kenyon has said: but not everything which text writers have represented him to have said, which he did not say.
Lefroy, C.J., Persse v. Kinneen (1859), (Lr. Rep.) L. T. Vol. 1 (N. S.), 78.
Stereotyped rules laid down by judicial writers cannot be accepted as infallible canons of interpretation in these days, when commercial transactions have altered in character, and increased in complexity; and there can be no hard-and-fast rule by which to construe the multiform commercial agreements with which in modern times we have to deal.
Bowen, L.J., Jacobs v. Credit Lyonnais (1884), L. R. 12 Q. B. D. 601; 53 L. J. Q. B. 159.
Respect for a law-writer whose works have gotten reputation, may determine the legislator or Judge to adopt his opinions, or to turn the speculative conclusions of a private man into actually binding rules. . . . Now till the legislator or Judge impress them with the character of law . . . the conclusions are the speculative conclusions of a private or unauthorised writer.
Austin, Jurisprudence, Vol. I., p. 37.
There is one notion often expressed with regard to works written or revised by authors on the Bench, which seems to me in part at least erroneous, the notion, I mean, that they possess a quasi-judicial authority. It is hardly enough remembered how different are the circumstances under which a book is written and a judgment pronounced, or how much the weight and value of the latter are due to the discussions at the Bar which precede the judgment.
It was the policy of the common law to forbid the transfer of rights of action. If this were not forbidden men would often pay the debts of others and bring actions upon them to the great increase of litigation.
Heath, J., Scholey v. Daniel (1801), 1 Bos. & Pull. 541; reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 238.
