Tes midia tu by the F: A. Ein person on behalf of himself and the Plain the nomentined to meet the minutes of judgment in the worn mentioned at in the following grounds,—

that an alleged fraud had been examined in the Comm and on the infant Flea ani Isha by bo: 1 that an alleged fraudulent onspiracy was entered into between Bo: that the Court world direct the official referve to inquire into the nature of this case on the grounds of alleged fran! &.. and upon hearing counsel for &c., Dismiss application with coete. Azi Let the applicants, or any of them, be not allowed to make any further applications in these artins, or either of them, to this Court or to the Court below, without the leave of this Court being first obtained. And if notice of any such application shall be given without such leave being obtained the respondents shall not be required to appear upon such application, and it shall be dismissed without being heard-Grepe v. Loam, 4th Nov. 1857, A. 1622.

NOTES.

By O. LII. 1. applications in an action to a Divisional Court or to a Judge in Court, shall be made by motion. By 0. LVI. 1 and 18, all applications to the Appeal Court shall be by motion, an 1 by 0. LIV. 25, in the Q. B. D. appeals to the Court from any decision at Chambers shall be by metion.

A motion in any cause or matter must be made before the Judge to whose Court the cause or matter is attached: Jud. Act, 1573, s. 42; and the notice should state the Judge before whom it is intended to be made. That an order made by a wrong Judge is not a nullity, see Dan. 1544, and cases there cited. As to form of notice of motion, see R. S. C. Appx. B., Form 18.

By O. 1. 1, 2, motions subject to the rules of Court, are to be made in the same manner as if the Judicature Acts had not been passed. Motions not in actions must follow the old practice: Re Phillips and Gill, 24 W. R. 158; 1 Q. B. D. 78.

A notice of motion stating that the Court will be moved at the Royal Courts of Justice is sufficient: Petty v. Daniel, 34 Ch. D. 172. A notice for a day not in the sittings is good: Re Coulton, Hauling v. Elliott, 34 Ch. Div. 22, overruling Daubney v. Shuttleworth, 1 Ex. D. 53; and in Williams v. De Boinville, 17 Q. B. D. 180, amendment of such a notice was allowed.

A Deft may, at any time after he has appeared, move for an injunction and receiver on notice to the Plt: O. L. 6. He may do so although Plt has served notice of motion for the like purpose. One order will be made on the two motions, and the Plt will in general have the carriage of the order: Sargant v. Read, 1 Ch. D. 600.

By O. LII. 2, no rule or order nisi to show cause is to be granted in any action, or to set aside, remit, or enforce an award, or for attachment, or to answer the matters in any affidavit, or to strike off the rolls, or against the sheriff to pay money.

The corresponding rule of 1875 only applied to actions: see Phillips and Gill, 1 Q. B. D. 78.

By O. LII. 3, no motion is to be made without notice, except where by the previous practice any order or rule has theretofore been made ex parte

absolute in the first instance, and except where, notwithstanding r. 2, an application may be made for an order to show cause only. But the Court or Judge, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court may think just; and any party affected by such order may move to set it aside.

A notice of motion may be served on a party who has failed to appear by being filed with the proper officer: O. XIX. 10; Dymond v. Croft, 3 Ch. D.

513.

An application to discharge an ex parte order must be made to the Judge with whose name the order is marked, or in vacation to a vacation Judge, and not to the Court of Appeal, the application not involving a rehearing: Boyle v. Sacker, 39 Ch. Div. 249.

Under Jud. Act, 1873, s. 25 (8), mandamus, injunction, or receiver may be granted ex parte, but orders for preservation or sale of property under O. L. 2, 3, must be made on notice: r. 6.

The indorsement of the writ was amended on ex parte application: Colebourne v. C., 24 W. R. 235.

As to motions for receivers and injunctions, see Chap. XXXII., “RECEIVERS," and Chap. XXXI., "INJUNCTIONS."

Orders for attachment must now be obtained on notice: O. XLIV. 2.

By O. LII. 6, the Court or a Judge, if of opinion on the hearing of a motion or other application that any other person ought to have notice, may either dismiss it or adjourn it in order that such notice may be given, upon such terms as may be thought fit; and by r. 7 may adjourn the hearing generally.

A technical defect in the notice may be amended in Court, and the notice re-served then and there: Heywood v. Wait, 18 W. R. 205; and see Williams v. De Boinville, 17 Q. B. D. 180; and an irregularity in service, by which the party had not been injured, was disregarded, and the motion heard on the merits: Dawson v. Beeson, 22 Ch. Div. 504.

An agreement for stay of proceedings or dismissal of the bill may be enforced by motion in the suit, even if involving equities distinct from those on the record: Eden v. Naish, 7 Ch. D. 781; Scully v. Ld. Dundonald, 8 Ch. D. 658; Re Gaudet Co., 12 Ch. D. 882; and see per James, L. J., in Pryer v. Gribble, 10 Ch. 534.

But an agreement for compromise cannot be set aside on motion or summons in the original action: Emeris v. Woodward, 43 Ch. D. 185.

An immediate admon decree was made by consent on motion in a creditor's suit, another creditor having taken out an admon summons returnable before the first day on which the cause could be heard as short: Furze v. Hennet, 2 D. & J. 125; Scaffold v. Hampton, 22 W. R. 182.

As to moving for orders on admissions of fact in the pleadings under O. XXXII. 6, v. sup. Chap. XIII., "MOTION FOR JUDGMENT." Inquiries and accounts may also be directed at any stage of the proceedings: 0. XXXIII. 2. But where the priorities of mortgagees depend on questions of fraud, the inquiries cannot be sent to Chambers before the questions of fraud have been tried: Garnham v. Skipper, 29 Ch. Div. 566.

No new evidence could be filed on a motion ordered to stand over on certain terms until the hearing: Singer v. Audsley, 13 Eq. 401.

As to what is sufficient notice of intention to use affidavits on appeal, sce Bloxam v. Metropolitan Rail. Co., 16 W. R. 492, n.

As to saving motions, see Banwen Iron Co., 17 Jur. 127; Wedderburne v. Llewellyn, 13 W. R. 939; Dan. 1553.

SERVICE.

By O. LII. 5, unless the Court or Judge 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; but on applications to answer matters in an affidavit, or to strike off the rolls, there must be ten days' notice. As to days not to be reckoned, see O. LXIV. 2.

If special leave be given to move on short notice, or on a day not appointed for motions, the notice must so state: Hill v. Rimill, 8 Sim. 632; Harris v.

Lewis, 8 Jur. 1063; Chambers v. Toynbee, 12 W. R. 1100; Dawson v. Beeson, 22 Ch. Div. 504; and leave to move before appearance does not authorize short notice: Newton v. Charlton, 10 Ha. xxxi.; Hart v. Tulk, 6 Ha. 611. Counsel on applying should state that he asks to serve on short notice: Dawson v. Beeson, sup.; but in case of omission it is not merely of course to give costs: see Newton v. Charlton, sup. Where notice was given for the wrong Court, such Court gave costs, but only two guineas: Yearsley v. Y., 19 Beav. 1.

Leave to serve short notice of motion cannot be given by the chief clerk even during the long vacation: Conacher v. C., 29 W. R. 230.

Motions for assignment of guardians under O. XIII. 1, must be on at least six days' notice.

Notice by a pauper must be signed by his solr, except for discharge of his solr: O. XVI. 29.

By O. LII. 8, a Plt may, without leave, serve notice of motion upon a Deft who, having been duly served with a writ of summons, has not appeared in due time.

By Cons. Ord. 3, r. 8, which was similar, service might be effected personally, or at the dwelling-house or office of any Deft, who having been served with the bill had not appeared within the time limited. Substituted service was ordered in fit cases under the old practice: Maclaren v. Stainton, 16 Beav. 279; or service abroad: Green v. Pledger, 3 Ha. 165. And by O. IX. 2, substituted or other service may be ordered of the writ of summons whenever the Plt is from any cause unable to effect prompt personal service," the grounds of the application being set forth in an affidavit: O. x.

By O. LII. 9, the Pit may, by leave to be obtained ex parte, serve notice of motion with the writ of summons, or after service of it and before the time for appearance.

As to service on the solrs of the parties, see O. IV. 1, and O. XII. 10. And on parties suing or defending in person, O. IV. 2, and O. XII. 11. By O. LXVII. 8, where a person who is not a party appears on any proceeding before the Court or in Chambers, service on his solr or agent in London is good; except in matters requiring personal service.

As to affidavits of service, see sup. pp. 20, 150.

By O. LII. 4, "every notice of motion to remit or enforce an award, or for attachment, or to strike off the roll, shall state in general terms the grounds of the application; and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion." Under this rule the affidavits must be served with the notice, and cannot be served on the country solr when the notice is served in London: Petty v. Daniel, 34 Ch. D. 172.

COSTS.

The Court may give costs of a special motion, though not asked by the notice: Clark v. Jaques, 11 Beav. 623; but not unless the respondent appears: Pratt v. Walker, 19 Beav. 261.

Where a motion was adjourned to the trial, and by mistake no provision as to the costs was made in the subsequent judgment, the Court ordered payment on motion after the judgment was entered: Fritz v. Hobson, 14 Ch. D. 542; following Viney v. Chaplin, 3 D. & J. 282.

The rules as to costs of motions as costs in the cause, where the order is silent respecting costs, are as follows:-(1) The party making a successful motion is entitled to his costs as costs in the cause, but the party opposing is not. (2) The party making a motion which fails is not entitled to his costs as costs in the cause, but the party opposing is. (3) When a motion is made by one party and not opposed by the other the costs of both parties are costs in the cause: per Leach, V.-C., 1 S. & S. 357.

But the Deft was held entitled to the costs of resisting the Plt's successful motion for an injunction, the bill being ultimately dismissed: Stevens v. Keating, 14 Jur. 157.

As to whether costs of correspondence before motion are to be regarded as costs of motion, or of action, see Norton v. Fenwick, 54 L. J. Ch. 632.

If a motion for an interim injunction stands over till the trial, it is not

only unnecessary but improper to reserve the costs: Bournemouth Commissioners v. Holden, W. N. (88) 205.

An order made on notice continuing an injunction with costs, carries the costs of an interim injunction obtained ex parte: Blakey v. Hall, 56 L. J. Ch. 568.

As to party not interested not being entitled to appear merely to ask for costs, see Campbell v. Holyland, 7 Ch. D. 166; O. LXV. 27 (23),

Where a party is ordered to pay the costs up to a certain day, the usual rules do not apply, and the costs of motions made during that time may be included in costs of action: Webster v. Manby, 4 Ch. 372.

The costs of a motion for an injunction ordered to stand over until the hearing, although not mentioned in the decree, were allowed to the Plt as being the costs of a substantially successful motion: Mounsey v. E. of Lonsdale, 6 Ch. 141; and so, where the bill was eventually dismissed, the Deft had the costs of a motion which stood over to the hearing: Corcoran v. Witt, 13 Eq. 53; and where a motion stood to the trial, and no mention was made as to the costs then or at the trial, judgment dismissing the action with costs carried the costs of the motion: Gosnell v. Bishop, 38 Ch. D. 385.

In Hodges v. H., 22 Nov. 1876, Jessel, M. R., directed the registrars to include in the general costs of suit the costs of all applications reserved to be disposed of at the trial, and all costs reserved to be disposed of at the trial.

If nothing is said to the contrary, the successful party gets his costs in any event per Jessel, M. R., in Jackson v. Wood, 12 Mar. 1880.

If the motion is to obtain an indulgence, the party applying must pay the costs: A. G. v. Corp. of Halifax, 18 W. R. 37; and see Dan. 1171; and as to costs of motions for injunctions, see Kerr, 30; and see inf. Chap. XXXI., "INJUNCTIONS."

The costs of an abandoned motion may be applied for on the day for which the notice is given, so soon as the motions are concluded, but the usual course is not to apply for them until next motion day, and a later application will not in general be entertained: Woodstock v. Oxford Rail. Co., 17 Jur. 33; Dan. 1559. The notice of motion must be produced to the registrar before he draws up the order: Withey v. Haigh, 3 Mad. 437; and see Berry v. The Exchange Trading Co., 1 Q. B. D. 77. Where the notice of motion was invalid, it was held that the Defts need not have appeared, and were not entitled to their costs of doing so, the Plts not appearing: Daubney v. Shuttleworth, 1 Ex. D. 53. For form of order, v. sup. Form 4.

In taxing the costs of an abandoned motion the costs of all work down to the time of any notice which stops the work are allowed if reasonable, and the same rule applies to discontinuance of action and dismissal: Harrison v. Leutner, 16 Ch. D. 559.

The costs of a motion were disallowed where a summons in Chambers would have sufficed: Allen v. Oakey, 62 L. T. N.S. 724.

As to the practice generally, see Dan. 1546 et seq. As to appeals from orders made on motion, v. inf. Chap. XXXVI., “APPEALS.”

CHAPTER XXV.

PETITION OF RIGHT.

1. Order on Petition of Right-Costs to be paid by the Crown.

THE petition of right of J. and M. &c., by Messrs. P. & G. of &c., copartners, their solrs, coming on this day to be argued before this Court upon her Majesty's command that right be done, in the presence of counsel for the suppliants and for her Majesty's A. G., and upon reading enter evidence) and (upon hearing) what was alleged by counsel for the suppliant and for her Majesty's A. G., This Court doth declare that &c. was entitled to &c. Tax the costs of the suppliants of the said petition, And Let the same, when taxed, be paid to the suppliants J. and M., in the manner directed by the Act of Parliament of the 23 & 24 V. c. 34.—See James v. The Queen, V.-C. M., 14 June, 1876, A. 1188; and see S. C., V.-C. M., 11 Feb. 1874, A. 338; 17 Eq. 502, where the demurrer of the A. G. was overruled with costs.

Where relief was refused and costs given to the Crown, see Re Brain, V.-C. M., 1 July, 1874, A. 1770; 18 Eq. 359.

2. Tico Demurrers to Petition of Right, one allowed, one overruled. THE demurrer put in by her Majesty's A. G. on behalf of her Majesty, and the demurrer put in by the Secretary of State for India in Council (served with the petition), to the petition of right of K. of &c., on behalf of himself and all other the persons who under the Royal grant of the 10 June, 1864, are entitled to share in the booty of Banda and Kirwee, coming on this day to be argued before this Court in the presence of the said K. in person, and of counsel for her Majesty, and the Secretary of State for India in Council, Upon opening and debate of the matter, and upon hearing what was alleged by the said K. and by counsel for her Majesty and for the Secretary of State for India in Council. This Court held the demurrer of her Majesty's A. G. on behalf of her Majesty to be good and sufficient, and that the suppliant is not entitled to any portion of the relief sought by his petition; And, therefore, Let the said demurrer stand and be allowed; And Let the said K. pay to her Majesty's A. G. his costs of his said demurrer, to