given notice, the plaintiff cannot afterwards obtain an order for the payment of the costs of that motion as being abandoned.(1) If a plaintiff gives a notice of motion, and dies before it is made, and his executors revive, it is laid down that the Court will not give the defendants the costs as of a motion abandoned.(2) It appears singular that the executors should be allowed the whole benefit of the suit, and be entitled by the revivor to have the cause in the same plight and condition as it [*68] was *at the time of the abatement, and yet that they should not be subject to the same liabilities respecting the suit, as their testator was at the time of his death.(3) The following rules were laid down upon the subject of costs of motion: 1st, That the party making a successful motion is entitled to his costs, as costs in the cause; but the party opposing it is not entitled to his costs, as costs in the cause.[a] 2d, That the party making a motion which fails, is not entitled to his costs, as costs in the cause; but the party opposing it is entitled to his costs, as costs in the cause.[6] 3d, That when a motion is made by one party, and not opposed by the other, the costs of both parties are costs in the cause. The Vice Chancellor added, that it was therefore the duty of the Court, whenever, by reason of special circumstances, it was not the intention of the Court that these rules should apply, to give particular directions with respect to the costs; but that the Court very rarely gave any special directions with respect to the costs of a motion for the purpose of obtaining, continuing, or dissolving (1) Farquharson v. Pilcher,a 4 Russ. 510. (2) Warner v. Armstrong, 4 Sim. 140. (3) On the hearing the bill was dismissed with costs, but the Court refused to order the costs of the abandoned motion to be costs in the cause. Lewis v. Armstrong, 3 M. & K. 69. [a] Rogers v. Rogers, 2 Paige, 459; Wilkinson v. Henshaw, 4 Paige, 257. So if a party succeed in a motion, and obtain an order for costs, and no direction is given as to them, and he obtain a general decree for costs, he shall be allowed costs of the motion. Stafford v. Bryan, 2 Paige, 45. But this rule does not apply, if the motion be granted as mere matter of favour, or to relieve the applicant from the consequences of his own default. Ibid. [b] Stafford v. Bryan, 2 Paige, 45. Eng. Chan. Reps. iii. 771. Eng. Chan. Reps. vi. 72. cIb. viii. 281. an injunction to stay proceedings at law, leaving the costs of such motion to abide the event of the suit.(1)[a] In Heneage v. Aikin, (2) a person not interested in a motion who was served with a notice, was ordered to have his costs of appearing; but Sir Thomas Plumer refused costs to a party appearing on a petition, without interest, though served.(3)—He said, “If a person is served whose appearance is not necessary, and he chooses to appear merely to ask for costs, it is the established prac- [ 69 ] tice here not to give him his costs. The rule is not of my making. When I first came to this seat, I thought the point of so much importance, that I consulted Sir W. Grant upon it. He informed me that in his time the rule was as I have stated, and I have followed the practice which my predecessors have established as being most useful to the public; a contrary practice would produce an enormous and unnecessary expense."(4) In Templeman v. Warrington,(5) costs were refused under similar circumstances, and such appears the present practice of the Court.[b] As purchasers and other strangers to the rights and interests of the parties cannot know on whom to make their services, it appears most reasonable to throw the discretion on the party appearing, who must be presumed to be best acquainted with his own interest. (3) Garey v. Whittingham, T. & R. 405.b (4) Garey v. Whittingham, 7 T. & R. 406.c (5) Rolls, 3rd Dec. 1819, 1 J. & W. 377.(n) [a] Costs should not be taxed upon overruling or sustaining a motion to dissolve an injunction. Barnett v. Spencer, 2 Hen. & Munf. 7. In New York, the practice is to give or refuse costs according to the circumstances of each case. [6] More recently, however, a party who was served with a petition and appeared upon it, who had no interest in the subject-matter, was allowed his costs; Lord Langdale, M. R. observing," that it was too much for a party who was served, to take upon himself to decide whether it was necessary for him to appear or not. A party under such circumstances, must be allowed his costs. This rule had been formerly deviated from, but it was found necessary to return to it." Lodge v. Robbins, 4 Lond. Jurist, 478. See Wormall v. Williamson, Exch. in Eq. 2 Lond. Jur. 440, contra. Eng. Chan. Reps. i. 183. Eng. Chan. Reps. xi. 220. Eng. Chan. Rep. xi. 220. CHAPTER V. PETITIONS. What applications made upon petition, 70. Grounds of distinction between applications by petition and motion, 71. Petition sometimes necessary to come on with a cause on further directions, 72. Petition of course at the Rolls, how discharged, 72. When a party in contempt cannot present a petition, 72. By whom petitions are heard, 73. At what stages of a suit presented, 73. Divided into petitions as of course, and special petitions, 73. How intituled, addressed, and presented, 73. How served, 75. Brief on petition, 75. How heard, 76. If party does not appear on petition, 76. Costs of petition, 76. Filing of petition and mode of compeiling petitioner to file petition, 77. WHEN the nature of the application to the Court requires a fuller statement than that which can be conveniently contained in a notice of motion, the proper course is to present a petition. A petition is also necessary in certain other cases; thus applications for the payment of money out of Court, are almost invariably made on petition, and when the title depends on any complicated circumstances the Court will not make an order upon motion.(1) In the case last cited, the title to the fund (which had been carried over to a separate account) merely depending on the infant having attained twenty-one, was paid out on motion. Parties who are under commitment can only be heard upon petition.(2) [*71] *In matters of lunacy and charity, the question is brought before the Court by petition; but under the Act providing a summary remedy in cases of charity, after one order has been obtained on petition, the subsequent orders may be obtained on motion.(3) There are certain applications which the Court will not grant upon petition. By Lord Bacon's 80th Ordinance, injunctions, sequestrations, dismissions, retainers upon dismissions, or final orders, are not to be granted upon petition.(4) But special injunctions are granted upon (1) Healcote v. Edwards, Jac. 504. Eng. Chan. Reps. iv. 303. (2) Nicholson v. Squire, 16 Ves. 260. Eng. Chan. Reps. vii. 471. petition in the long vacation.(1) By the 83rd Ord. Demurrers are not to be overruled upon petition.(2) In Shipbrooke v. Hinchinbrook,(3) Lord Erskine, in speaking of the distinction between an application by motion and petition, thus expresses himself:-"I do not find that there are any precise or positive boundaries between motions and petitions, as they are to be applied to carry into effect decrees and orders, so as to exclude all discretion in the Court to grant or to refuse them, according to circumstances. But generally speaking, motions, which have for their object to give effect to decrees and orders, should be confined to cases, where the order which is to be made upon the motion arises out of recent proceedings, concerning which there is no doubt. For, as the adverse party knows nothing but by the notice containing only the name of the cause, and what is prayed of the Court, the proceedings ought to be recent and notorious; so as that the adverse party may be supposed to be perfectly conversant of all the steps and proceedings in the cause, as much as if at a greater expense they were recited in a petition." * "What cases are of this sort, and what may [ *72 ] require the formality of a petition, reciting all the proceedings in a cause, is a matter obvious enough in the application of the principle; but it is still a matter of discretion. Lord Eldon, it is said by Mr. Alexander, would not allow money to be paid out of Court upon motion; as the recitals in a petition, which must be justified by the proceedings to warrant the drawing up of the order, would always speak for themselves at any distance of time, or change of parties in the cause. A petition upon this principle is the proper form of proceeding to give effect to a decree of long standing; by a party to the cause entitled to the benefit of it. But by this proceeding a decree can neither be added to, nor altered. To add any thing to a decree the consequence of any proceeding which the decree had directed, the cause must be set down for further directions. To alter the decree itself in the minutest particular, the cause must be reheard."(4)[a] (1) See Beam. Ord. 215. (2) Beam. Ord. 36. (3) 13 Ves. 393. (4) Shipbrooke v. Hinchinbrook, 13 Ves. 393. [4] A petition is the proper course, to obtain the reversal of an interlocutory decree, VOL. I. 6 If on the hearing of a cause on further directions, it is necessary to bring any matter before the Court beyond that contained in the Master's report, a petition must be presented to come on to be heard with the cause on further directions. An order made as of course upon petition at the Rolls, may, if irregularly or improperly obtained, be discharged upon motion before the Master of the Rolls,(1) or a motion may be made to the Lord Chancellor to discharge it although the Court said that such last practice was inconvenient, and might require to be amended by a general order.(2) The same rules which apply to motions in a great measure govern the right of a party to present a petition: thus a party must clear his contempt before he can be heard upon any petition except one respecting that contempt. [ *73 ] *All the three Judges presiding over the Court of Chancery may hear petitions, but at present and for some years past the Lord Chancellor generally confines himself to those petitions which appeal against the judgment of either of the Courts below. A party presenting a petition is at liberty to select in which Court he will have the same heard, but he cannot set down an original petition to be heard personally before the Lord Chancellor, unless a special case is made out, in which event the Counsel applies to the Lord Chancellor for liberty to have the petition put into his paper. The Vice Chancellor acts as assistant Judge to the Lord Chancellor, and being by him deputed to hear petitions, they are accordingly presented to the Secretary of the Lord Chancellor and answered by the Lord Chancellor, and are then heard by the Vice Chancellor. If a party (1) Lees v. Nuttall, 2 M. & K. 284. (2) Eastwood v. Glenton,b 2 M. & K. 280. wrongfully made, the suit yet pending. It cannot be done on motion or bill of review. Wilson's Ex'rs. v. M'Lain's Ex'rs, 2 Hayw. 175. So, for surprise or irregularity, Radley v. Shaver, 1 Johns. Ch. Rep. 200. Whether a party is entitled to relief by petition, or must apply by bill, depends on circumstances, and the sound discretion of the Chancellor. Where the petition is on some collateral matter, which has reference to a suit in court, he may be relieved on petition. Codwise v. Gelston, 10 Johns. 508. Where an order to stay proceedings, in a party must apply to the Court upon petition. Eng. Chan. Reps. vii. 372. cause pending in this court, is proper, the Dyckman v. Kernochan, 2 Paige, 26. Eng. Chan. Reps. vii. 371. |