Page:The Granite Monthly Volume 5.djvu/184

 i6o THE GRANITE MONTHLY.

up that he was married upon the ground that parties might be married de bene esse, so to speak, and that no marriage was valid, though all the ceremonies were duly performed without what is sometimes known in the law of marriage and divorce as "consummation." The result was that Field who was a great linguist, a man of many accomplishments, and a great lawyer, went to St. Louis, starved for about seven years and then became a star of the first mag- nitude in a bar that was one of the foremost in the union.

9. In theory, the practice is regulated by the rules of court. The power to make these rules was conferred upon the court by statute at a very early period. Whether the statute added anything to the inherent powers of the court may admit of question. The boundaries of these powers are loose and illdefined, but very little trouble has yet arisen on that account. Perplexity not unfrequently arises from the fact that these rules are contradictory, sus- ceptible of two or three different interpretations ; or must be modified by con- struction to prevent their defeating the end for which they were created. Another source of trouble lies in the fact that judges not unfrequently fail to master the rules established by the court of which they are members. There is still another source of perplexity more troublesome than either to the young practitioner. He finds a rule as plain to himself and everybody else as a pike- staff, but he finds as well that the presiding justice when it is cited pays no attention to it.

Judge Redfield, in Torrey v. Field, 10 Vt., 407, already referred to, upon this point says : ''A majority of that court are not supposed to be acquainted with the rules of practice in the court of chancery, and are not bound to be, for rules of court are no part of the fixed law of the land. They are liable to change from term to term by order of the court, and in fact do change without its being supposed that any fixed principle is thereby unsettled." This doctrine has been affirmed in this state. The short of all this is that every judge ex- ercises a species of "despensing power" and may suspend or disregard any rule of practice at his pleasure.

It may be useful to advert to a few practical questions which are liable to arise every day in practice, and this I do by request.

DOCKET MARKING.

1. The cases abound with the phrases, "rule," "rule of court," "rule, nisi,'' "rule absolute," &c.

A rule means an order of court. A rule of court is an order or commission to a referee and the like. "Rule nisi, is in general an order of judgment unless the court in banc, or some other court otherwise order. "A rule abso- lute," is in general where the court above confirm the order of the court below.

2. "Continued nisi,'' means continued unless otherwise ordered by the court. The effect of this order is double : first, that of a continuance, and second, it keeps the court in session in legal contemplation as respects that particular cause until some further order is made.

3. "Rule enlarged," means that some order of court like that of a reference which would otherwise expire, is revived or continued in lull force until another term.

4. "Judgment ;z/.f/," ™c^"s that the cause goes to judgment at the term when the order is made unless the court shall otherwise order. This entry may have the effect as before suggested of keeping the court in session in re- lation to that particular cause until judgment is entered or some further order made.

5. " Neither party," means that none of the parties respond to the call of the court. In effect it is an entry that the cause goes out of court, and that

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