Changing decisions - Decisions when preferable to statutes.

statute, even though it disregards convenience or justice. But a rule established by the decisions of the courts may, as we have seen, be changed by the same court which established it. The remedy for correcting erroneous decisions is not left entirely to the same court which made them; for the mode of reviewing decisions upon appeal is a most effectual method of securing a full deliberation, and a wise and just settlement of all questions. In such cases the appellate court has an opportunity for learning the reasons which governed the court below, and the additional advantage of a full argument by counsel, and a careful examination of previous adjudications upon the same or similar points, and, with the aid of these lights, to render a correct decision. This power of changing the decisions, when that is necessary, and the advantage of consulting other decisions or authorities by the judges, before deciding a point, is one of the most valuable methods that could be devised for securing the creation or adoption and application of the wisest and best rules of practice in every case presented for examination and decision.

Section 7. Decisions when preferable to statutes. While a statute has the advantage of being inflexible, that very circumstance may be one of the greatest objections to it. In matters of practice it is important that there should be a settled rule, but it is equally true that in no other department of legal science is there so great a need of the power of adapting the rules of practice to each case and point as it is presented for decision. And if fixed inflexible rules must be established by any one, it is far better to repose that trust in the courts instead of the legislature. The judges, by constant and careful observation, have discovered the defects that need correction, and, by long study and experience, they are familiar with all the details of the systems of practice in force. Under such circumstances, there can be little room for doubt as to the superior qualifications of the judges to settle the rules of practice. And, if a statutory system is to be continued, no greater improvement could be adopted than that which should provide by statute that the courts should have power in all cases to provide by general rules for all such cases as might arise and were unprovided for by statute. The courts now have authority to resort to the old practice in some instances, but this is not enough. Let the courts have power to make proper rules, and to provide appropriate remedies or relief in all cases which may be brought before them. And let them have the further power of

Principles of law and equity practice - Conflicting authorities.

changing all rules or practices which may be inconsistent with a systematic general plan. If this power had always been possessed by the courts, there would have been no need of a statutory practice; or, if the outline must be created by statute, the filling up and completion of the plan as to details would be safely left to the courts. The common law and the equity system did not invest the judges with sufficient powers for changing the practice, or for establishing a new one. The courts had extensive powers as to the application of settled rules or principles; but they felt restrained from exercising a power of creating or devising new ones, or from deviating from settled rules of law or practice. The power to create a practice must be confided to some man or body of men, and to whom can it be more safely intrusted than to those judges who are to define, construe and apply it?

Section 8. Principles of law and equity practice. Notwithstanding the defects of the former systems of practice at law or in equity, they were generally adequate to the emergencies that required their application. As the result of many centuries' experience, they contained an almost inexhaustible supply of rules and principles which had been adopted by wise and just judges, upon the most careful consideration, after a fair trial in the course of actual practice. To throw all the advantages of these systems aside is not wise, and the more frequently the courts resort to them, in pursuance of the power conferred for that purpose, the more beautiful and useful will the new practice become in its development.

Section 9. Conflicting authorities. There are natural differences of opinion among men, and there have been, and there will continue to be, conflicting decisions upon questions of law. They constitute, however, but a small portion of the great mass of the authorities, and their influence is of a temporary character, for upon further consideration and decisions it will be found that there is generally a well-defined current or balance of authority.

Upon general principles of law or equity the courts do not limit themselves to the decisions of a single State, but extend their researches over the entire field of English and American law. And, when this has been done, a rule is adopted which is most consonant to reason and justice, unless in some case the overwhelming current of local authority is felt to be conclusive.

Diversities and uniformities-Rules of court.

To found decisions upon a full review of all the authorities has several advantages; it secures an examination of all the reasons for or against the rule; it shows in what direction a majority of the courts are proceeding; it enables the court to profit by the experience of ages gone by, as well as by the wisdom of the present; it has a tendency to secure uniformity and accuracy in the points settled, and, from some of the numerous decisions reported, there will be found some authority in point, either in facts or principle.

If our courts would examine the conflicting decisions upon the construction to be given to the various sections of the Code, there would ultimately be a clear and satisfactory result attained, and a harmonious practice established.

Section 10. Diversities and uniformities. In all the great essentials of practice there will be a general uniformity, notwithstanding the great diversities in the details. This is true of all legal principles, whether they relate to matters of practice, or to the general principles of jurisprudence. At the present time there is a tendency toward uniformity in the practice of the courts of the different States, several of them having adopted the general plan of the New York Code of Procedure. And should this practice extend to all of the States, much would be done toward securing a uniform American system of practice. In past times, and even at this day, the courts of this country have followed the decisions of the English courts to a greater or lesser extent. And, after the older States of the Union had established systems of practice, the newer States frequently adopted the principles of the decisions made by the courts of such older States. So, too, statutes have been borrowed from the English books, by the different States, as well as by the several States from each other. And, in the adoption of the Code, there is nothing new in the general principle of adopting the systems of law or practice established elsewhere.

ARTICLE V.

RULES OF THE COURT.

Section 1. Nature and object of rules. Rules of court are made for the purpose of declaring what practice shall be pursued in specified cases, and to establish a uniform and known method of

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Rules of the court.

proceeding in such general matters as are of daily occurrence, and to save the courts the trouble of making a special order in each particular case.

It is by means of such general rules that the court directs, in advance, and with entire uniformity, what steps shall be taken in many of the proceedings in the action, which steps could not otherwise be regularly taken unless by an express order of the court previously obtained. And, in actual practice, as well as in theory, every step taken in a cause by virtue of a general rule, is actually taken by the express direction of the court, with this qualification, that it is made in advance, and that it applies to all similar cases as well as to the one which is proceeding under those rules.

Section 2. Incidental power to make rules. Every court of record has inherent power, independently of any statute, to make rules for the transaction of its business, provided such rules do not contravene the law of the land. This power has been exercised for a long period, and by all courts of record.

Section 3. Statutory authority to make rules. Under the former practice, the statute gave the supreme court judges and the chancellor the power to make general rules of practice in cases not provided for by statute. 2 R. S. 175, § 46; id. 199, §§ 19, 20, 21, 22.

The Code, section 470, confers authority upon specified judges to make general rules to govern several of the courts of record. So, too, the laws of 1870, chapter 408, section 13, provide for the adoption of general rules which are binding upon all courts of record. In pursuance of these statutes, a body of general rules has been adopted; and by the 96th rule so made, the various courts of record and general terms are authorized to make such further rules as they may deem necessary for the transaction of business before them, provided they are not inconsistent with the general rules.

Section 4. Force and effect of rules. The statute which provides for the adoption of a set of general rules, declares that they shall be binding upon all the courts of record of this State, so far as they are applicable to their practice. Laws of 1870, ch. 408, § 13. The Code, section 470, is nearly similar in its provisions.

The binding effect of these rules may be considered in reference to the parties to the actions or proceedings, and in relation to the courts themselves. That the parties are bound by the

Rules-Discretion of the court.

rules, and that a disregard of them is an irregularity in the practice, is a well-established principle, which is acted upon every day. And every act which is regularly done in pursuance of a general rule is as valid as though done by the express direction of the court in some particular instance.

Rules deliberately adopted by the whole number or by a majority of the judges, authorized by law to make them, ought to be very generally observed and enforced. And the courts are unwilling to sanction a disregard of them. Battershall v. Davis, 23 How. 383; Matter of Livingston, 34 N. Y. (7 Tiff.) 555, 582; 2 Abb. N. S. 1, 28.

How far an appellate court will interfere with a disregard of a general rule, see the case last cited and Coleman v. Nantz, 63 Penn. St. (13 Smith) 178. When a judge will disregard one of the rules of court, see Clark v. Brooks, 26 How. 285.

ARTICLE VI.

DISCRETION OF THE COURT.

Section 1. Necessity for such a power. In every case in which a question arises there must be some mode or principle of decision. To anticipate every conceivable case is not a possibility, and to establish a legal rule which shall cover all future contingencies would be equally impracticable. It is a wise rule which declares that as much shall be done as is practicable, to provide a rule which shall govern each case in accordance with legal principles, instead of leaving the decision to the discretion of the judge. For, where there is a settled legal rule of decision, every one knows what that rule is, and he has a remedy by appeal in case any violation of the rule occurs to his detriment.

But there are many cases in which no general rule can be applied, and in which the interests of the parties and of the public will be best subserved by leaving the disposition of particular questions to the discretion of the judge, upon all the facts appearing in the cause. As the law now stands, there is hardly a general step in the progress of an action which is not more or less liable to be controlled by the discretion of the judge.

As this section was designed to state the general rule, and not to furnish the instances in which a discretion is permitted, it will be sufficient to mention a few examples by way of illustration.