stay pro

With respect to orders to stay proceedings, it is provided Orders to by a rule of the supreme court, that "whenever a stay of pro- ceedings, ceedings may be necessary in order to make a special motion, a justice of this court, circuit judge, or a supreme court commissioner, may grant an order for that purpose; and service of such order, with copies of the affidavits on which it is granted, shall operate as a stay of proceedings until the order of the court; but the proceedings shall not be stayed for a longer time than to enable the party to make his motion, according to the practice of the court, and if made, until the decision of the court thereon."15

companied

by notice of

An order to stay proceedings is inoperative unless accom- must be acpanied or preceded by notice of the intended motion.14 On non- or preceded enumerated motions, the order stays proceedings only during motion; the term for which the notice is given; but as either party may notice and bring an enumerated motion, 15 it seems that in such case the proceedings are stayed until the motion is decided, or the order vacated.16

erate to ex

plead, &c.

An order to stay proceedings against a party does not do not opoperate to extend a rule to plead or answer entered against tend rule to him; but after the expiration of the order, his default may be entered in the same manner as if the order had not been made.17

A judge may vacate his own order;18 but after application for an order to a judge, whether the order has been granted or refused, it is irregular to make any subsequent application to any other judge or officer, in reference to the same matter, and in the same stage of the proceedings. 19

Application must be first made to judge.

It is a general rule where a single judge is authorized to grant an order, that application should be made to a judge at chambers, in the first instance, and not to the court.20 But Party may if a judge refuse an order, or either party is dissatisfied with

appeal to

court.

Judge can

not suspend,

the order made, the party aggrieved may appeal to the court.21 An appeal to the court from the decision of a judge in giving or refusing an order, must be brought on by motion founded on notice and affidavit, as in other cases.22

After the court has made an order in reference to a matter, or affect or such order cannot be suspended or in any manner affected by an order made by a judge or supreme court commissioner.25

der of court.

Effect of or

der,

cannot be

treated as a

nullity.

How served.

An order, as long as it remains unvacated, is as binding as any act of the court; nor need it be entered and made a rule of court, unless it be necessary to enforce it by attachment ;24 and if a judge's order be improvidently made or not in due form, it cannot be treated as a nullity; but it is effectual for the purpose for which it was granted, until revoked or altered by the judge, or set aside on motion.25

A judge's order must be served by delivering a copy of it, it not being sufficient merely to serve a notice ;26 and, if it be intended to bring the party into contempt, by showing the original order at the same time.27

20 3 Caines' Rep. 83.

21 1 Johns. Cas. 245. 4 Cowen. Rep. 539.

22 1 Dunlap. Pract. 308.

23 Ante, Vol. 1. p. 164. 1 Johns. Cas. 396. 20 Johns. Rep. 124.

24 1 Taunt. 47. Bur. Rep. 2571. 25 2 Cowen. Rep. 463. 3 Cowen. Rep. 73. 1 Chit. Rep. 724. 26 2 Johns. Rep. 104.

27 3 Johns. Rep. 20. 7 Cowen. Rep. 148.

SECTION II.

COMMON RULES AND RULES BY CONSENT.

Common rules, which are rules of course, without special Defined. cause being shown, and rules by consent, may be entered generally, either in term or in vacation, in a book in the clerk's office, which is provided by him for that purpose.28 In entering the rule, the day on which it is entered should be noted; and the party may enter such rule as he may conceive himself Entered at entitled to, of course, but at his peril; so that if, for any rea- 1. son, he was not entitled to such rule, the court will order it to be vacated.29

36

37

peril of par

most ordina

ted.

Of common rules, the most ordinary are, the rule that the some of the sheriff return a writ; the rule to put in special bail;31 rules ry enumerafor a default which are entered in various cases; the rule to plead; to declare; to reply, rejoin, &c.;34 to join in demurrer 35 to amend the declaration, plea, or other pleading the rules for interlocutory judgment, and for judgment final, after default,39 or upon demurrer,40 or upon confession;11 the rule that the clerk assess the damages, or that a writ of inquiry issue;42 the rule for judgment nisi after verdict ;43 and

Rules, four days.

Rules by

consent.

the rule that the defendant be at liberty to pay money into court.44

All rules not specially provided for by rule of court or by law, are rules of four days.45

Rules by consent are a species of common rules, and are entered on reading and filing the consent. It is provided by rule, that "no private agreement or consent between the parties or their attornies, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of a rule by consent, and entered accordingly in the book of common rules; or unless the evidence thereof shall be Agreements in writing, subscribed by the party or his attorney, against whom the same shall be alleged."46

must be in

writing.

ly binding,

This rule is usually strictly enforced by the court;47 and it has been held that a verbal agreement between the parties, or their counsel not to bring on the cause to trial, was no objection to the defendant's moving for judgment as in case of nonsuit.48

Rules equal- In one case it was contended, that the rule, though in terms on parties as embracing the parties as well as their attornies, should yet be

on their attornies.

confined to the practitioners of the court only; for, that though ignorance of the law of the land is no excuse, every man being supposed to be acquainted with it, yet that this presumption of knowledge did not extend to the private rules of the court, of which the officers of the court only were to be supposed conusant: a majority of the court, however, were of a different opinion, and it was held that the rule was equally binding upon the parties as upon their attornies.49

14 Post, Chapter 8.

45 Rule 65.

46 Rule 63.

47 1 Caines' Rep. 147. 513. 2 Caines' Rep. 95. 3 Caines' Rep. 129. 1 Johns. Rep. 507. 3 Johns.

Rep. 145. 7 Johns. Rep. 320. Sed vide 3 Caines' Rep. 131.

48 3 Caines' Rep. 129. 1 Johns. Rep. 507.

49 3 Caines' Rep. 129.

between

agreement.

It must be observed that there is a distinction between a Distinction waiver and an agreement; thus, service of a paper necessary waiver and to an order, or any formal requisite of service, may be waived by parol.50 But it seems that though a parol agreement is admitted, and its being merely verbal is not urged against it, yet the court will not give it effect unless the party expressly waive the objection, or consent to the application that is made.51

copy of rule

The copy of a rule certified by the clerk, is evidence of the Certified rule without further proof;52 but the allegations in a rule of evidence. court are not proof of the facts alleged.53

a

effect of a

A rule is not a matter of record, nor has it the effect of Nature and record; and therefore, on the issue of nul tiel record, if a re- rule. cord be produced, the opposite party cannot avoid it, by showing a rule on the minutes of the court vacating the judgment. 54

SECTION III.

OF AFFIDAVITS.

Affidavits and oaths in all cases in which they are authorized How taken. or required by law, may be taken and administered in the same manner as oaths taken in open court.55 What officers and persons are authorized to take affidavits, has been stated in a previous part of this work.56

50 8 Cowen. Rep. 119.

51 3 Caines' Rep. 131.

52

436.

54 9 Johns. Rep. 287.

55 R. St. P. 3. Ch. 7. T. 3. s. 90.

1 Camp. 102. 11 Johns. Rep. Vol. 2. p. 408. See ante, Vol. 1.

p. 523.

56 Ante, Vol. 1. p. 168.