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fore referred to, in which case his Honor said, " the case of Smith v. Webster has no application to the question what is the jurisdiction the Master exercises under the statute. In general the Master must adhere to the orders of the Court, as laid down for the regulation of the practice. He has no discretion where the jurisdiction is conferred by the Court, but must follow its directions. But the act for regulating the proceedings and practice of the Court bas given him different and bigher powers. In the matters mentioned in the 13th section, in applications for time to answer, for leave to amend a bill, and for enlarging publication, the Master has the jurisdiction in the first instance; the jurisdiction is taken from the Court and given to the Master; and what the Court could have done, the Master can now. In cases not arising out of the act it is different; there the Master cannot relax the orders of the Court:” and thus it may be concluded, that where the application is directly in pursuance of the statute, the Master has the same power of interpreting its meaning as the Court itself would have; but where the application is under an order of the Court, the Master has no authority to depart from the strict letter of the order. Such a construction is also consistent with another recent case which has not been adverted to, viz. that of Furnival v. Swann, decided by the Master of the Rolls (a). In that case, after
(a) M. R. April, 1838, Cooper, P. C. 405.
a demurrer set down for argument had been submitted to, application was made to the Court for leave to amend the bill, which was granted, the plaintiff undertaking to amend within three weeks, and paying 20s. costs of the amendment and the costs of the demurrer. Before the three weeks had expired the plaintiff obtained from the Master an order giving him further time to amend. This was discharged as irregular, the plaintiff having entered into an undertaking with the Court, and the Master having no jurisdiction to interfere and enlarge the time fixed by the Court.
That the Court itself has the power of relaxing its general orders, seems to be indisputable. In a recent case before the Vice-Chancellor (a), his Honor observed, that the orders of the Court were to be considered as laying down general rules, but not as being so imperative that they could under no circumstances be departed from ; and the same opinion was expressed by Lord Chancellor Cottenham in Smith v. Webster (6), and by the Master of the Rolls in Carr v. Appleyard (c). Lord Plunkett also, in speaking of the new Chancery Orders in Ireland, observed, that there was no ground for saying, nor could it be pretended, that those rules, the creatures of the Court, were to become its
(a) Burrell v. Nicholson, 6 Sim. 212.
masters, by assuming a nature so binding as to overrule and control the acts of that very Court which gave them existence (a).
Although, however, the general principle of relaxation is admitted, where circumstances call for its exercise, few cases have hitherto been decided that define practically the extent to which it would be permitted to operate. Sir Wm. M‘Mahon, the Master of the Rolls in Ireland, with reference to the Irish new Chancery Orders, said, that his view of the system of Orders of the 29th November, 1834, which were issued under the statute 4 & 5 Will. 4, c. 78, for the amendment of the proceedings and practice of the High Court of Chancery in Ireland, was, that they were to be considered as Orders, while unrescinded, of the same nature as Orders in a statute, as for example, as the rules inserted in the statute 5 & 6 Will. 4, c. 16, as to persons in custody under process (the Irish Equity Contempt and pro confesso Act); that all those Orders were to be considered as the written and binding law of the Court, unless where upon the acknowledged principles of a Court of Equity they ought to be relieved against, viz. in cases of fraud, or accident (6). But there is, it is humbly submitted, another mode of construing the orders which will admit of still greater latitude in favour of the honest suitor than would be accorded to him
(a) Re Lyons, 1 Drury & Walsh, 327.
by the two exceptions allowed by Sir Wm. M-Mahon, and will still exact a rigid interpretation where necessary for the prevention of delay and chicanery. Certain of the Orders were framed for affording facilities to suitors in the management of the various proceedings required to be taken during the progress of a cause, and these, being in the nature of remedial statutes, are to be construed liberally; while the object of others is to impose a penalty on those who should by neglect, or improper delay, prevent, or retard, the due administration of justice, and these, although in the nature of penal statutes and to be construed strictly, are to be literally enforced. Indeed, the same order will sometimes admit of the twofold construction just alluded to, when it is applicable to different cases ; thus, in the cases of applications for amendment of bills after the time allowed has expired, if upon any such application the cause of the delay can be satisfactorily accounted for, and the amendment is of importance for determining the rights of the parties to the cause, an order will be granted, but if the application has become necessary through negligence, or inadvertence, the strict letter of the order will be enforced. — Rees v. Edwards, 1 K. 465; King of Spain v. Hullett, 1 Russ. & M.7; Traile v. Bull, 1 Beav. 475. The case of Russell v. Dight, 6 Sim. 430, affords a further illustration of this view, for in that case the Vice-Chancellor held a fourth answer to be irregularly filed after the first and
second angwers had been successively reported insufficient, when the Master was about to report the third answer insufficient also, His Honor observing, that, although in a common case a defendant was at liberty to put in an answer as soon as he had an intimation of the Master's opinion, that his answer was insufficient, yet he was not at liberty to do so in a case where the plaintiff might derive some benefit by the judgment of the Master; and that some advantage having accrued to the plaintiff under the 10th Order (of 1828), by the report that the third answer was insufficient, the Court could not deprive him of it.
Computation of Time.]—The general rule, with respect to all the Orders as to time, is, that one day is to be included and the other excluded in the computation; and if the last of any specified number of days happens on a Sunday, the Sunday is not to be reckoned.-- Angell v. Wescombe(a), Milburn v. Lyster (6).
When time is to be computed by the month, it is in actual practice construed lunar month.Attorney-General v. Newberry (c).
Service of Order. When the General Orders use a term which embraces no more than the obtaining the Order, service is also directed; but when
(b) 5 Sim. 565.
(a) 1 Myl, & Cr. 48.