Motions. Motions of course. Special motions. Ex parte motions. CHAPTER XI. MOTIONS, PETITIONS, &c. It frequently happens that it becomes necessary to apply to the Court during the progress of an action, and either before or after judgment has been pronounced. When this is the case the application is made by motion, petition, or summons. A motion is an application, either by a party to the proceedings or his counsel, not founded upon any written statement addressed to the Court (1). Motions are either motions of course, of which no notice need be given, and which do not require to be mentioned in Court, as there can be no opposition to them; or special motions. As an instance of a motion of course may be mentioned a motion to make a foreclosure decree absolute; the counsel who makes it merely hands his brief to the registrar in Court, who initials it, and the order is then drawn up accordingly. A special motion is one which must be made in Court, and supported by proper evidence, and the Court may grant or refuse it, or, if it thinks fit, may adjourn the hearing of the application. Motions of this class are either made ex parte or on notice. An ex parte motion may be made at any time when the Court is sitting, but it is essential that all material facts should be mentioned to the Court, and if this is not done, any order that may have been made will be discharged with costs, whatever the merits. In the Chancery Division one day a week is set apart for hearing motions, in addition to the first and last days of the sittings, which are always motion days. In the Queen's Bench Division the motions are set down in a printed list, and are taken in the order in which they are set down. In the Chancery Division a different practice prevails; the motions are not set down at all. The Queen's counsel are entitled to audience in order of seniority before the members of the junior bar are heard, each Queen's counsel having the right of moving two opposed and any number of unopposed motions. (') Daniell's Chy. Pr., vol. ii. p. 1546; R. S. C. Order LII., rr. 1, 2, 3. When all the Queen's counsel have had an opportunity of Motions. being heard, the judge calls on the members of the junior bar, in some Courts in order of seniority, in others commencing from the centre. Every notice of motion to set aside, remit, or enforce an award, or for attachment, or to strike off the rolls, must state in general terms the grounds of the application; and, where the motion is founded on evidence by affidavit, a copy of any affidavit intended to be used must be served with the notice of motion. Unless the Court give special leave to the contrary there must be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion. In applications to answer the matters in an affidavit or to strike off the rolls, the notice of motion must be served not less than ten clear days before the time fixed by the notice for making the motion. Where leave has been obtained to serve short notice of motion, the notice must show that such leave has been obtained (1). If the matter is of a pressing character, and the plaintiff is desirous of not waiting until the defendant has appeared, or the time for his appearance has expired, leave to serve notice of motion with the copy of the writ should be obtained on motion ex parte. It not unfrequently happens that the parties agree to treat the hearing of a motion as the trial of the action, and in such a case the order made by the judge on the motion concludes the proceedings, though any such order is of course subject to appeal (2). A petition is a request in writing addressed to the High Court Petitions. of Justice, or the Lord Chancellor, and showing some matter or cause on which the petitioner prays the direction or order of the Court. A petition, as was said in a recent case (3) is just as much a litigious proceeding as an action if there is jurisdiction to bring the parties before the Court on it. In this case a petition had been heard on its merits, and had been dismissed on the ground that the plaintiff had failed to make cut his case, (1) Dawson v. Beeson, 22 Ch. D. 504. (2) The opinion of the Taxing Masters was this year specially taken on a point of some importance. Suppose judgment is given dismissing an action with costs, does this include the costs of a motion by the plaintiff, which was adjourned or stood over to the hearing, and was then not The Court, in the case of Gosnell (3) In re May, 28 Ch. D. 516, 519. Petitions. and the Court of Appeal decided that the plaintiff could not, on the subsequent discovery of fresh evidence in support of his title, present a fresh petition for the same object, unless he previously obtained the leave of the Court. “The doctrine of res judicata," said one of the judges, "is not a technical doctrine applicable only to records. It is a very substantial doetrine, and it is one of the most fundamental doctrines of all Courts, that there must be an end of litigation, and that the parties have no right of their own accord, after having tried a question between them and obtained a decision of the Court, to start that litigation over again on precisely the same questions" (1). A petition is a "pleading" within the meaning of the Judicature Act (2). Petitions may be presented either in an action or in a matter over which the Court or a judge thereof has jurisdiction under some Act of Parliament or other special authority. (See as to Statutory Jurisdiction (ante, p. 690). Petitions are either for orders of course or for special orders; as an instance of the former class may be mentioned a petition to revive a suit which has abated on which the order is made as a matter of course. A special petition must be presented to the Court and supported by proper evidence; the persons named as respondents may in a proper case oppose it, and when all parties have been heard the Court makes or refuses the order prayed for. Many of these petitions, however, are of a kind which cannot properly be opposed, e.g., a petition for payment out of Court of a fund to which the petitioner has become absolutely entitled. All that the petitioner has to do in such a case is to state shortly in his petition the facts which show how the fund came into Court, and that he has now become entitled to it; and on being satisfied that these facts are proved by proper affidavits the Court makes the order. In former times a great many orders were made on petition, which under the present practice are made on summons (see post, p. 782). The principal kinds of petitions now in use are petitions to wind up companies under the Companies Acts or petitions under the same Act for supervision orders (ante, p. 650); and petitions dealing with funds in Court where the sums to be dealt with are of large amount (see post, p. 782). Special petitions are set down in the list in the order in which they are presented, and come on for hearing on the next petition day, one day a week being set apart for the purpose of hearing them; and the practice is to take all the unopposed petitions first, and then the opposed petitions. (1) In re May, 28 Ch. D. 516. (2) Judicature Act. 1873, s. 100. Every petition, except a petition of course, and every copy thereof, must have a note appended to it, naming the person, if any, intended to be served, and if it is not intended to serve any one, the note must so state (1). In the absence of special leave, there must be at least two clear days between the service and the day appointed for hearing a petition. It may be here desirable to mention that many Acts of Pailiament require that the purchase-money of property taken under compulsory powers should be paid into Court, and the rules provide that in the case of applications under such Acts, any persons claiming to be entitled to the money so paid in must make an affidavit not only verifying their title, but also stating that they are not aware of any right in any other person, or of any claim made by any other person, to the sum claimed, or to any part thereof, or if the petitioners are aware of any such right or claim, they must in the affidavit "state or refer to and except the same" (2). The third form of proceeding to which we have alluded is by summons, and this shall be hereafter considered under the head of "Business at Chambers," post, p. 779. 71. (1) R. S. C., 1883, Order LII., rr. 16, (2) R. S. C 1883, Order LII., r. 18. Definition. Various modes of execution. CHAPTER XII. EXECUTION. After judgment the subject of execution must be considered. It deserves to be pointed out that the rules (1) provide that where any person is by a judgment or order directed to pay any money, or to deliver up or transfer any property, real or personal, to another, it shall not be necessary to make any demand thereof, but the person so directed shall be bound to obey such judgment or order, upon being duly served with the same without demand. Where the judgment or order is to the effect that a party is entitled to relief upon a condition or subject to a contingency, the party so entitled may, upon the fulfilment of the condition or contingency and demand made upon the party against whom he is entitled to relief, apply to the Court or a judge for leave to issue execution (2). Execution is the process by which a judgment or order of the Court is enforced against the person or property of the party against whom the order is made. In other words, it is the process by which a man obtains the "fruits" of a judgment or order which he has obtained against another person. The various modes of execution are a writ of fieri facias, commonly called a fi. fa.; a writ of elegit; sequestration; attachment of debts; charging orders; distringas and stop orders; a writ of possession, and a writ of delivery; all of which are aimed at the property of the party against whom the judgment or order is pronounced or made. In certain cases, execution may be had against the person of such party, and he is either attached or committed (3). A writ of execution, if unexecuted, remains in force for one year only from its issue; but may, at any time before its expiration, be renewed, by leave of the Court, for one year from the date of the renewal. As between the original parties to a judgment or order, () R. S. C., 1883. (2) Bell v. Denvir, 54 L. T. 729; Robinson v. Galland, 37 W. R. 898. |