court, or of any judge thereof, shall be deemed motions and applications grantable of course by the clerk of the court. But the same may be suspended, or altered, or rescinded by any judge of the court, upon special cause shown." The order dismissing a bill for an omission to duly file a replication is an order as of course. It has been held that an order for the issue of a commission is not. "The clerk's office shall be open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining, and disposing of all motions, rules, orders, and other proceedings, which are grantable of course and applied for, or had by the parties or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed." "All motions, rules, orders, and other proceedings made and directed at chambers, or on rule-days at the clerk's office, whether special or of course, shall be entered by the clerk in an order-book, to be kept at the clerk's office, on the day when they are made and directed, which book shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors. And, except in cases where personal or other notice is specially required or directed, such entry in the order-book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceedings entered in such order-book, touching any and all the matters in the suit to and in which they are parties and solicitors.""

§ 196. Special motions without notice. A special motion is a motion which can only be granted by a judge of the court under special circumstances or in his discretion. Such motions are either upon notice or without notice. Orders granted upon motions without notice are said to be ex parte; and the same term is applied to the motions upon which they are granted. An ex parte special motion must be supported by an affidavit." Ex parte special motions are not common.3 They are usually

3 Equity Rule 5.

§ 196. Daniell's Ch. Pr. (2d Am.

4 Robinson v. Satterlee, 3 Saw. 134, ed.) 1789; U. S. v. Parrott, 1 McAll. 141. 447, 454.

5 U. S. v. Parrott, 1 McAll. 447.

6 Rule 2.

7 Rule 4

2 Daniell's Ch. Pr. (2d Am. ed.) 1789. 3 McLean v. Lafayette Bank, 3 McLean, 503; U. S. v. Parrott, 1 McAll

granted to prevent some irreparable injury to the moving party which would otherwise occur within the time limited for notice, when the same is required; and the court should always lend a willing ear to an application to discharge or set aside an ex parte order. Writs of ne exeat republica are usually granted ex parte. So are applications for extensions of time to plead, or take other proceedings in a cause. The equity rules provide that "Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not enter his appearance, and plead, demur, or answer to the same within the time prescribed therefor by these rules, the plaintiff shall be entitled as of course, upon motion, without notice, to such injunction. But special injunctions shall be grantable only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte, if the adverse party does not appear at the time and place ordered. In every case where an injunction - either the common injunction or the special injunction is awarded in vacation, it shall, unless previously dissolved by the judge granting the same, continue until the next term of the court, or until it is dissolved by some other order of the court." The Revised Statutes, however, make an exception to this rule, in providing that "whenever notice is given of a motion for an injunction out of a Circuit or District Court, the court or a judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge." The rule was, moreover, thus construed by Mr. Justice Miller: "The justices of the Supreme Court have power to grant injunctions which do not expire by the commencement of the next succeeding term. To injunctions thus granted, the latter part of the rule applies, namely,- that they continue until dissolved by some other order of the court. To injunc

447; Marshall v. Mellersh, 5 Beav. 496; Gray v. C., I. & N. R. Co., 1 Woolw. 63.

4 Daniell's Ch. Pr. (2d Am. ed.) 1789, 1790; Isnard v. Cazeaux, 1 Paige (N. Y.), 39; Hart v. Small, 4 Paige (N. Y.), 551.

5 Collinson v. 18 Ves. 353; Daniell's Ch. Pr. (2d Am. ed.) 1789, 1937.

6 Rule 55. See also Yuengling v. Johnson, 1 Hughes, 607.

7U. S. R. S., § 718. See infra, S$ 230, 231.

tions granted by the judges of the District Courts, the other alternative of the disjunctive sentence applies, merely reiterating the provision of the statute, that they continue till the next term of the court, unless otherwise ordered by the court." 8 Ex parte orders may be obtained at any time and in any place within the jurisdiction of the judge, whether in court or elsewhere.9

§ 197. Notice of motion. The equity rules provide that "all motions for rules or orders and other proceedings, which are not grantable of course or without notice, shall, unless a different time be assigned by a judge of the court, be made on a rule-day, and entered in the order-book, and shall be heard at the rule-day next after that on which the motion is made. And if the adverse party, or his solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte, and granted, as if not objected to, or refused, in his discretion."1 "Any judge of the Circuit Court, as well in vacation as in term, may, at chambers, or on the rule-days at the clerk's office, make and direct all such interlocutory orders, rules, and other proceedings, preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect as the Circuit Court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary, at the next rule-day thereafter, unless some other time is assigned by the judge for the hearing." It has been held that the foregoing rule does not apply to a motion made in term and in the presence of counsel for the opposing side. "Except in cases where personal or other notice is specially required or directed, such entry in the order-book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices and other proceedings, entered in such order-book, touching any and all matters in the suits to and in which they are parties and solicitors. And notice to the solicitors shall be deemed notice

8 Gray v. C., L. & N. R. Co., 1 Woolw. 63, 68.

9 Daniell's Ch. Pr. (2d Am. ed.) 1789; Equity Rule 3.

197. Equity Rule 6.

2 Equity Rule 3.

3 McLean v. Lafayette Bank, 3 McLean, 503, 505.

to the parties for whom they appear and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in the suit reside in or near the same town or city, the judges of the Circuit Court may, by rule, abridge the time for notice of rules, orders, or other proceedings not requiring personal service on the parties, in their discretion." This subject is usually regulated by rule or local practice differently in the several circuits. In the Circuit Court for the Southern District of New York, four days' notice personally served, together with a copy of the bill and of the affidavits intended to be used in support of the motion, is all that is usually required.

All notices of motion for any process of contempt or commitment must be served personally on the party against whom the process is sought, except, perhaps, when an order for substituted service has been previously obtained. In England, under special circumstances, notice of a motion could be made upon an agent of a person without the jurisdiction."

A notice of motion should be properly entitled in the cause or matter in which it is made." It should be addressed to the solicitor of the party intended to be affected by it, or to the party himself when he appears in person or personal service is intended. It should be dated," and signed by the solicitor for the moving party, or by that party himself if he appear in person." It has been held in New York that a notice signed in person by a defendant who has previously appeared by a solicitor who has not been removed is irregular.12 A notice of motion should state the day, place, and hour at which the mo

4 Equity Rule 4.

5 See Rule 105 of the Rules of the U. S. C. C. for the Southern District of New York.

6 Daniell's Ch. Pr. (2d Am. ed.) 1794; Gray v. C., I. & N. R. Co., 1 Woolw. 63; supra, § 96.

9 Barb. Ch. Pr. 570; Rowlatt v. Cattell, 2 Hare, 186; Salomon v. Stalman, 4 Beav. 243; Davis v. Barrett, 7 Beav. 171; Morrall v. Prichard, 11 Jur. (N. S.) 969.

10 Barb. Ch. Pr. 570; Moody v. Hebberd, 11 Jur. 941; Hutchinson v.

7 Hope v. Hope, 4 De G., M. & G. Horner, 9 Jur. 615; Parker v. Francis,

828.

8 Daniell's Ch. Pr. (2d Am. ed.) 1794; Hope v. Hope, 4 De G., M. & G. 328; Cooper v. Wood, 5 Beav. 391; Pulteney v. Shelton, 5 Ves. 147; Hunt v. Lever, 5 Ves. 147; and § 96.

9 Jur. 616, note.

11 Barb. Ch. Pr. 570; Perry v. Walker, 4 Beav. 452.

12 Halsey v. Carter, 6 Robertson (N. Y.), 535; Webb v. Dill, 18 Abb. Pr. (N. Y.) 264.

14

tion will be made. It is usual, however, to designate the hour by the expression "at the opening of the court on that day," and to add the words "or as soon thereafter as counsel can be heard." Where the motion can be made only by leave of the court, the notice ought to mention that it is so made; or, otherwise, it seems that it may be disregarded.15 Where the object of the motion is to discharge an order for irregularity, it is usual for the notice to state the ground of the application.16 It is usual for the notice also to state before what judge the motion will be made; and to specify the affidavits and other documents which will be used in its support." The notice must state clearly the terms of the order which will be asked for, and everything which the party would have should be expressed; as the court will not extend the order beyond the notice.18 For this reason, it is usual to add a notice of a motion for general relief; that is, "for such other or further order or relief as to the court shall seem just; " under which, other relief germane to that, a motion for which has been specifically noticed, may be granted.19 A general appearance and consent to an adjournment waives a defect in a notice of motion.20 It has been held that on the hearing of a motion for the production of papers under a subpoena duces tecum coupled with a prayer for general relief, if the other party appears by counsel, an order may be granted committing him, or, if a corporation, committing its officers, for contempt for disobedience to the subpoena." It has been held that a motion for the appointment of a receiver cannot be made at the hearing of a motion for an injunction against an interference with a railroad claimed to be in the possession of the moving party." A motion to suppress depositions brings

13 Barb. Ch. Pr. 570: Bodwell v. Willcox, 2 Caines (N. Y.), 104; Anon., 1 J. R. (N. Y.) 143.

14 Barb. Ch. Pr. 570; In re Electric Tel. Co. of Ireland, 10 W. R. 4.

15 Hill v. Rimell, 8 Sim. 632; Jacklin v. Wilkins, 6 Beav. 607.

16 Brown v. Robertson, 2 Phil. 173; Alexander v. Esten, 1 Caines (N. Y.), 152; Jackson v. Stiles, 1 Cowen (N. Y.), 134.

17 Daniell's Ch. Pr. (2d Am. ed.) 1793;

Clement v. Griffith, C. P. Coop. 470; Brown v. Ricketts, 2 J. Ch. (N. Y.) 425.

18 Barb. Ch. Pr. 570; Mann v. King, 18 Ves. 297.

19 Barb. Ch. Pr. 570.

20 Marye v. Strouse, 6 Sawyer, 204. 21 Edison El. L. Co. v. U. S. EL. L. Co., 44 Fed. R. 294, 300.

22 St. L., K. C. & C. Ry. Co. v. Dewees, 23 Fed. R. 691.