The practice of the court is the law of the court.
This applies to courts of equity as well as of common law, inferior as well as superior, and even to the High Court of Parliament ; but the practice of one court does not govern that of any other ; and though the practice of each court in dealing with its own process is unlimited, yet it must only assist, and not interfere with, to pervert or nullify, positive statutory enactment and a due course of law. That the practice of the court should be the law of the court, and that there should be such practice of necessity, is in accordance with the maxim, “ Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud.” The law would be of no avail without the means of carrying it into effect, and courts of law would be chaos without rules for their government.
Not only must the court direct the thing to be done, but it must direct the manner of doing it consistently with the law. It must see that the law, according to the practice of the court, is properly carried into effect ; and for that purpose it requires returns to be made and recorded by its officers of the due execution of all its process.
This power of the court over its process, to regulate the manner of its execution, is of necessity unlimited, for were it otherwise> the process would be abused according to the fancy, caprice, or malicious design of each suitor, officer, or other person interested, or choosing to be interested therein.
The course of procedure upon irregularities, nullities, amendments, and other informal proceedings are within this rule.
It will not be difficult for the reader to understand the importance of this maxim if he is himself in active practice in the several courts of law and equity, for lie will no doubt have found that the law as read in books is altogether a different thing from that practiced in the courts ; or, rather, it may be said, be will find that the adaptation of the law in practice to the several cases brought before the courts is very different from that which the mere reader of law books would thereby be led to conceive. To judge of the extent of the application of this maxim in the absence of practical experience, it is only necessary to look at Evans' or some other of the Law Digests, under the head of “Practice;” where will be found what may be called the numberless decisions of the several courts and judges upon the varied and often abstruse questions which arise in the application of the law, in its several branches, to the infinite variety of subjects which are being constantly brought before them ; and which decisions are. in fact, law.
By some Acts of Parliament the court has power to make rules of practice, which when made become the law of the court, and of course the law of the land, as much so as the statute itself which directed them. The propriety of suck delegated authority may be open to question, especially when, as it sometimes does, it goes beyond mere practice, even to permitting the changing of positive law. This delegated authority, even applied to Parliament, comes within the rule, “Delegatus non potest delegare.” Public opinion, however, holds in so high esteem the probity of the judges of this country, that such acts of the Legislature are suffered without objection.
3 Buls. 53; 11 Geo. 4 & Will. 4, c. 70, a. 11 ; C. L. P. A. 1852, ». 223 Cooker ,:. Tempest, 7 M. & W. 502 ; Scales c. Cheese, 12 M. & Vf. 087 Stammers v. Hughes, 18 C. B. 533 ; Gregory v. Duke of B., 2 H. L. C. 415 Mellish v. Richardson, 1 C. & F. 221 ; Ferrier v. Howden, 4 C. & F. 32 Finney c. Beesley, 17 Q. B. 86; Edwards v . Martin, 21 L. J. 88, Q. B. Jacobs v. Layborn, 11 M. & W. 690 ; Wallworth v. Holt, 4 My. & Cr 635 ; Kimberley v. Alleyne, 2 H. & C. 223.