Rule of the Preliminary Order was framed. A precedent for this occurs in the Irish Orders consolidated by Lord St. Leonards, when Lord Chancellor of Ireland; the first Order of which provides, "that the abrogation of any existing Rule shall not be deemed to alter or affect the established practice of the Court originating therefrom, except so far as the same may be inconsistent with any of those General Orders." As regards the 7th and 8th Rules of the Preliminary Order, it must be observed, that the following Orders (except so far as any of them introduce new practice) are not intended to be regarded as new Orders, but as a consolidation of old Orders. And although the appearance would have been better, if some of the incorporated Orders had been entirely re-written, and it would have been more easy to have done so than to have decided in what way partially to alter the language of them (as we have in many instances done) without altering them further than necessary, yet they would then have been the subject of new constructive interpretation to a much greater extent. And even if, in their present consolidated state, they had been put forth as a body of new Orders, the door would have been thrown open to contention as to the construction of them, upon points which have been set at rest by the course of decisions and practice on the old Orders. To preclude this danger of awakening fresh litigation, the 7th and 8th Rules of the Preliminary Order were framed. A precedent for the 7th Rule occurs in the consolidated Irish Orders; the first of which provides "that all former Orders which are hereinafter simply repeated shall continue to operate as if they had not been disturbed." With respect to the arrangement of the Orders, we deemed it best not to lay down any plan at the commencement, and then endeavour to arrange them according to that plan, but to take the opposite course of determining the plan partly by the subject matter, number, and mutual connexion of the Orders which we might find to be subsisting, so far as any such connexion existed, and partly by considerations of present practical convenience and the possibility of additions being made at a future time. If the first course had been adopted, there would have been titles without any Orders to place under them; some single Orders must have been multiplied into several; and the connexion at present existing between certain Orders must have been severed, which would have induced the necessity for a greater alteration of the language. Instead of denominating each distinct paragraph or direction a distinct Order, such paragraphs or directions are classified into a certain number of subjects; and to each of those subjects is given the designation of an Order; and the component paragraphs or directions of each Order are designated by the name of Rules.* This division and subdivision appeared to us to be desirable for three reasons: First, because we think such an arrangement would greatly aid the memory; for in a short time the practitioner would easily remember the titles and numbers of the different subjects constituting the different Orders; such Orders being few as compared with the Orders of which the consolidation would have consisted, if each paragraph had been denominated an Order, and had been numbered accordingly. Secondly, because if our arrangement should be adopted, then in the event of a fresh issue of the Consolidated Orders at any future time, the numbers of the Orders with which the practitioner would have become familiar, might probably remain the same, and the numbers of the Rules alone be changed (if deemed desirable) on the addition of new matter, instead of the memory of the practitioner being charged with an entirely new set of numbers. And thirdly, if there were consecutive numbers throughout, references in Reports and text-books to those numbers would have afforded no guide *Some of the Orders are divided into Sections; but, for the sake of simplicity of reference, the numbers of the Rules run on, as if no such division existed. So that it will not be necessary to mention the sectional division of an Order, where any exists. Any rule of the Consolidated Orders may be conveniently cited in Court thus-"the 10th of the Consolidated Orders, rule 11," or in a book thus-10th Cons. Ord. r. 11. to the same matter contained in any new issue of the Orders differently numbered. The Consolidated Orders comprise about six hundred Rules, representing about the same number of abrogated Orders incorporated therein. But of course we have nothing to shew, in the following pages, for the amount of time and thought bestowed on the consideration of the mass of abrogated Orders which we have altogether omitted, as superseded, obsolete, repugnant, or defunct. It may be a satisfaction to your Lordship to know, that instead of dividing the labour between us, as regards the selection of the Orders to be omitted and the Orders to be retained, we first made the selection independently of each other, and then compared and considered the results at which we respectively arrived. By adopting this plan, of course there was a much less chance of accident or inadvertency, than there would have been if we had attempted to allot a distinct portion of the Orders to each. And, by your Lordship's direction, and at our own desire, in order to insure the greater accuracy, before submitting the Orders to the Judges themselves, printed copies have been sent by Mr. Johnson to the Accountant-General, to the Examiners, to the Registrars, to the Taxing Masters, to the Clerk of the Inrolments in Chancery, to the Chief Clerks of the Judges, and to the Clerks of Records and Writs: and we beg to express our obligations to these gentlemen for many valuable remarks, and particularly to Mr. Leach, one of the Registrars, who kindly perused the proof sheets before the printed copies were sent to the other officers of the Court, and with whom we have been in frequent communication on the subject, whilst the orders have been under revision. There are many things connected with this Consolidation which may be likely to appear to some persons to be errors or oversights, but which have been fully considered by us, and are conceived by us to be founded on good reasons; although it would have occupied far too much space to have set forth those reasons in this Report. From the character of some of these points, which are subjects of doubtful disputation and a nice discretion, a difference of opinion would naturally exist, even after the fullest consideration; and from the very nature of the undertaking, notwithstanding the care bestowed upon it, we can scarcely hope that this Consolidation is free from all inadvertency or imperfection. But, on the whole, we trust that it will be found substantially to accomplish your Lordship's design; and that the profession in general will see the great propriety and utility of that design, and will not regard the manner in which it has been executed in an unfavourable light. We have the honor to be, my Lord, Your Lordship's obedient, humble servants, JOSIAH W. SMITH, B.C.L., Barrister-at-Law. Lincoln's Inn, April 16, 1859. THE RIGHT HONORABLE THE LORD CHANCELLOR. REPORT OF THE CONSOLIDATORS OF THE CHANCERY ORDERS, TO THE RIGHT HONORABLE THE LORD CAMPBELL, LORD HIGH CHANCELLOR. MY LORD, Your Lordship, immediately after accepting the Great Seal, having commended to the attention of the other Equity Judges, the proposed Consolidated General Orders of the Court of Chancery, which had been submitted to them by Lord Chelmsford, and some of the Judges having, in the course of the Long Vacation, made a number of valuable observations thereon, we have, by your Lordship's desire expressed to us at the commencement of the past term, carefully considered those observations, and conferred with the distinguished persons with whose remarks we have been favoured, and with some of the Officers of the Court, respecting them; and in consequence thereof, we have made a few alterations and additions in the proposed Orders. Certain points, however, remain for the consideration of your Lordship and the other Equity Judges, at the meeting which your Lordship informed us it was your intention to convene, and which we have been summoned to attend.* When these are * At this meeting, which took place on the 1st of December, and at which the Lord Chancellor and all the other Equity Judges were present, it was determined that Claims should be abolished, on the ground, that although they were very useful at |