SNOWDEN ». SNOWDEN. 555

sons in the State where the infant resides, authorizing them or any
two of them to appoint a guardian to answer and to return his
answer.(tt) In these particulars therefore the practice of the court
has been established by positive legislative enactment. The cours«
is prescribed in cases where it is said to have been doubtful whether
or not there was any method of proceeding whereby the object
might be attained. The mode thus pointed out, cannot be con-
sidered as an addition to any antecedent one, since it is expressly
declared, that it was prescribed in order to remove all uncer-
tainties upon the subject; and not for the purpose of introducing
a new form of proceeding in addition to an existing one. It does
not give a cumulative remedy, but unalterably settles and defines
a previous ambiguous practice, so that the court might safely
and readily exercise its then existing powers. Taking this view
of the 'subject it clearly follows, that the court can have no
authority to pursue a course of proceeding different from that
which has been thus laid down by the legislature. Any prac-
tice established by the court itself may be altered for good rea-
sons; or by usage such practice may, and in many instances
has gradually glided into a new or different course; but the
positive enactments of the General Assembly can never be
disregarded.

By an English statute enacted in 1346,(v) it was declared, that
the justices of gaol delivery should take an oath before the Chan-
cellor, &c. yet no such oath is now taken, and the statute is con-
sidered as obsolete ;(w) and by an act of Parliament, passed
in 1416,(x) it was declared, that no one should sue out a sub-
poena in chancery until he had given security for costs in case
he failed to sustain his bill. It is said, that this statute has in
England by degrees grown out of use, and is now entirely van-
ished, (y) And against a statute passed in the year 1705,(z) a
practice of no more than seven years was allowed to prevail, (a)
A statute passed in 1413,(o) directed, that none should be elected
members of parliament who were not at the time resident of the
place from which they were returned. This is another instance
wherein the principle of desuetude has been avowedly set np
against an unrepealed legislative enactment(c) And our own

(«) 1818, ch. 193, s. 11 & 12; 1831, ch. 311, s. 8,—(v) 20 Edw. 3, c. 3. (w) Juried.
Court Chan. 13.—(x) 15 Hen. 6, c. 4.—(y) I Harr. Pra. Chan. 200; 2 Com.Dig,
371.—(z) 4 & 5 Anne.—(a) Regina v. Ballivos de Bewdley, 1 P. Will, 228; Money
v. Leach, 3 Burr. 1755.—(b) 1 Hen. 5, c. l.—(c) 2 Hall. Mid. Ages, 156.

*