which is involved in the proposition to effect such a consolidation as above suggested. Even if it were proposed to embody all rules of practice into an Act of Parliament, but with the provision that they should be deemed Orders of the Court of Chancery to all intents and purposes; still, they would be either revocable and alterable as Orders, or they would not. If it were proposed that they should be so inserted in the draft of an Act, and be revocable and alterable as Orders, the Legislature would not be at all likely to consent, nor does it seem proper that the Legislature should consent, to place them on this footing; and indeed, in that case it would be useless to insert them in an Act. And if it were proposed that they should not be so revocable and alterable as Orders, this, for the reasons above assigned, would be highly inexpedient. A striking illustration of these remarks occurs in Calvert v. Gandy, 1 Phil. 518; and Medhurst v. Allison, 4 Hare, 479.

Again, it has been pressed upon us, that it would be very desirable to embrace the present opportunity of making a great number of additions and of improvements of the practice. But he who supposes that any considerable additions and improvements could be effected at once and with little more delay than consolidation, is but little acquainted with the difficulty and delay with which any new Orders are agreed upon and settled, when there are seven Equity Judges, and a great number of Officers of the Court whose opinion it is usual and only prudent to take. And however desirable such additions and improvements may be, they will be made to far greater advantage after the present consolidation, than as part of the consolidation in the first instance. If extensive additions and alterations were now made, they would probably be quickly followed by other extensive changes; so that the practice would be likely to be very greatly unsettled twice within a short period, instead of being, in the main, placed on a different footing once for all-so far at least as any measure of the kind can be final. It would seem to be the best course first to lay a foundation, by giving the profession a clear view of the practice as it stands, so far as it is regulated

by the Orders. Instead of attempting to patch and repair and make some little additions, before they had ascertained the state of the building, they will now know upon what they have to proceed; what exists, and what does not exist; what is the real character and state of the building sought to be enlarged and improved. Suggestions might advantageously be invited from all quarters, to be sent in within a specified time, to the Solicitor of the Suitors' Fund, or some other person appointed to receive them, for the perfecting of the edifice, now that it is cleared from all the rubbish of former ages; and, as the result of those suggestions, after an adequate interval, a more complete structure could be reared. And in the meantime, supposing your Lordship's design, whether regarded as final or as only preparatory, to be successfully accomplished, a great and unmixed good will have been effected, by bringing order out of confusion, and harmony out of discord, and by separating those Orders which are subsisting from a mass of others which have become defunct.

However expedient it may be that a far more extended codification should be effected, yet it would seem clear that it would have been very inexpedient to allow the General Orders of the Court to remain in their present state during that indefinite, and, probably, long period which would elapse before such more extended codification would be accomplished.

Few can have a just notion of the complexity, discrepancy, repugnancy, and confusion of this, the principal written law of the Court, or of the care, consideration, and labour requisite for that which has been described to us by some persons, and may appear to many, to be a simple matter.

In the majority of cases, until of late years, each succeeding Chancellor put forth such Orders as he deemed expedient, with out taking any notice whatever of the acts of his predecessors, which, indeed, were often unknown to him, as no care was taken as to the preservation of many of the early Orders, and there was no complete collection published. (See Prefaces to Beames' and Sanders' Orders.) The General Orders in the Collection by Mr.

Sanders (to whose research the profession are so much indebted), and those which have been subsequently promulgated, are not only very numerous, but some are contained in Private Orders, and they extend over a period of nearly 500 years commencing with the reign of Richard II. The largest portion are not in force. A great number of them have been expressly abrogated by other Orders: but many have been only virtually repealed or superseded; some by statutes, others by subsequent Orders, others by a train of decisions, others by disuse or contrary usage. And there are instances of an Order having from time to time been silently and partially abrogated, leaving some small portion of it still subsisting.

These considerations appear to prove the utility of your Lordship's design, and the propriety of the limited nature of the authority conferred upon us.

As the business in the Masters' Offices will ere long be wound up, and as the Orders relating to the Suitors' Fund and Suitors' Fee Fund, which are very numerous, do not affect general practice, we have not incorporated the Orders connected with these subjects, but have simply left them unabrogated.

We have adapted to the practice in Chambers some of the Orders relating to the business in the Masters' Offices. But there are others which we have omitted, as unnecessary or improper, in the case of a Judge, and of his Chief Clerk acting under him, although they were necessary in the case of a Master. And all danger which might otherwise have arisen from the omission of any of those Orders is prevented by the 58th Order of October 16, 1852, which we have incorporated. (See p. 116)

As alterations in regard to fees and charges are so frequent, we have given the Schedules and some parts of the Orders relating to them in a separate form, as Regulations, and have provided that they may be altered from time to time by other Regulations made by the same authority as the General Orders. This will save the present Consolidated Orders from being continually subjected to alteration in this respect, and yet give the profession

the same security, as to fees and charges, as if they were in all respects regulated by General Orders. Those points, however, as to fees and charges, which are likely to be permanent, we have embodied in the Consolidated Orders.

We have omitted the Forms of Orders in Suits by Claim contained in Schedule (C.) to the General Orders of 22nd April 1850, as those forms are obsolete, and orders in Suits by Claim are now framed in the same manner as orders in Suits by Bill.

With respect to the Orders of 4th March 1856, made under the Act for the Drainage of Settled Estates, we have been informed that they have been almost a dead letter. And as it appears to us to be impossible to reduce them to a shape conformable to the modern practice, without repealing some of the provisions of that Act, we have not incorporated them, but have simply left them unabrogated.

With books of practice which show in what way the Orders have been construed by the Court, it did not seem necessary to incorporate the effect of explanatory decisions. Nor did such an attempt seem expedient; as the very language used to give the effect of decisions would probably have itself formed the subject of fresh doubt and decision. This point was considered by your Lordship before our instructions were given to us.

In the additions and alterations we have made, we have in some few exceptional cases gone somewhat beyond our instructions, but only in those cases in which we thought there could be no two opinions as to the propriety of so doing, and in which we consequently felt sure your Lordship would desire it. Some of these additions and alterations were designed to correct some unquestionable slips, ambiguities, discrepancies, and inaccuracies; and others to remove a danger of the present practice being disturbed or doubted, in consequence of the defective language of an Order as it stood.

Some few rules introduce new practice, and are submitted to your Lordship for consideration. To most (if not to all) of

the rules in which the practice is changed, an asterisk is fixed.*

pre

We believe that the present Collection of Orders contains none but those which are subsisting, and all such as are subsisting; with the exception of those which are excepted from the operation of the first Rule of the Preliminary Order; and with the exception of a very few which we deemed it safer not to retain ; all possibility of danger from their omission being obviated by the 5th Rule of the Preliminary Order; and with the exception also of some few which are repugnant in terms or intention to other Orders or to Enactments, or which are now improper in consequence of other Orders or Enactments.

As regards the 5th Rule of the Preliminary Order, there are some cases in which the practice, originating in certain Orders, or sanctioned to some extent by them, has been so altered or qualified by enactment, decision, or usage, that they have become superseded or obsolete as Orders. These we have been instructed to omit, and we have generally omitted them. But with the view of guarding against any contention that the abrogation of them affected the existing practice, and with the further view of guarding against the consequences of the possible omission of an Order by accident or inadvertency, the 5th

* In the directory part of many of the abrogated Orders, incorporated in this Collection, such colloquial expressions as "is to" &c. or "are to" &c. were used, while in many others "shall" &c. was used. In this collection of Orders, "shall" &c. is used throughout, for the sake of uniformity, without any variation of intention. Again, in the introductory part of the incorporated Orders, in some instances, the expression" in all cases where" or "where" was used, and in other instances "if" was used; and sometimes "if" was followed by the indicative mood, and at other times by the subjunctive; and sometimes by the present tense of the indicative mood, at other times by the past tense, at other times by the first future, and at other times by the second future. An attempt to produce complete uniformity would have involved much alteration, without any practical utility; but for the sake of a somewhat greater degree of harmony, and to avoid the question about the subjunctive mood, "where," followed by the present tense, has generally been substituted for "if" in this Consolidation. And some other slight alterations have been made with a similar object.