of his petition or motion be granted, unless cause to the contrary be shown by the adverse party at such time as the Chancellor may think proper to appoint for this purpose; a copy of the order is served on the adverse party, and if he does not appear to show cause at the time appointed, on proving due service of a copy of the order by affidavit, the order nisi will be made absolute.

Common Orders.

There are many orders of the court which form steps in the proceedings of the cause, to which the parties, according to the practice of the court, is entitled of course, without giving any notice, or showing any special cause in open court; these are called common orders; such as orders for an attachment for not appearing, any order requiring a defendant to appear to a complainant's bill on proof of his absence from this state, or concealment therein-every order for a reference to a master of exceptions to a bill or answer; every order that a defendant enter his appearance and file his answer in six weeks,(b) and many others.

These common orders may be entered in term or vacation with the register or assistant register, at the instance of the party, if he subscribes in person, or if his solicitor, at the peril of the party, taking such order. But all orders to which a party would not by the practice of the court be entitled to of course, and without showing any special cause, are denominated special orders, and upon due service and notice application must be made for them in open court. Any or

(b) Rule 59.

der may be entered with the register by consent, such consent being signed by the parties, and filed at the time of entering the same.(c)

In cases of adultery, no order can be entered, as of course, except by consent.(d)

The compiler having closed his general observations on the subject of interlocutory orders, in which he has endeavoured to give the reader a summary view of the general nature and extent of them, he will now proceed to the examination of this subject in a more special manner, under the head of motions, which are granted almost in all stages of a cause, with the proceedings which ordinarily accompany them, and by which they are governed agreeably to the practice of the court, and which he proposes to treat separately and distinctly, each under its appropriate head.

Motions.

A motion is a prayer or request, ore tenus of a party in the court, either in person or by counsel.(

And some motions are of course, that is, where by a standing rule, or the known course of the court, the thing requested is to be granted without hearing both sides; on these motions no notice is necessary, nor do the court hear any defence against motions of course; but the adverse party may move to set them aside, if the orders so obtained be to his prejudice, or obtained upon false suggestion.(b)

There are likewise other motions which are not grounded on the general rules of court, but are sometimes beside or against it, and these are granted or de

(c) Rule 59. (d) Rule 84. (a) Prac. Register, 245.

(b) Thick

nied according to the discretion of the court, after hearing counsel on both sides.(c)

Special Motions.

Special motions, or motions granted on extraordinary occasions, are very rarely granted without notice; and generally in such cases, an affidavit of the facts alleged must be read in court, and notice of motion in writing, signed by the party, and served on the opposite solicitor, which service, if required, must be proved.

The Monday in every week during the vacations is assigned for the hearing of motions and petitions, if the Chancellor is either in the city of New-York, or the city of Albany. And no motions or petitions can be made or presented on any other day, excepting for orders, for the issuing of writs of injunction, or ne exeat, or unless there should be no time to finish the business offered on Monday; in which case it will be continued from day to day till the business be finished.(a)

All notices of special motion ought to be served at least four days, exclusive of the day of service, before making the saine.(b)

All notices of special motion, served on solicitors residing above sixty miles from the place where the motion is to be made, shall be served at least eight days before making the same, exclusive of the day of service.(c)

After a final decree, an order for the defendant, to account before the master, so as to vary the relief sought by the bill, will not be granted on motion; but

the reference must be granted, if at all, after a rehear ing in the cause.(d)

Motion for the amendment of pleadings, and first of the complainant's bill-affidavit-notice of motion-order of the court.

If the plaintiff conceives from any matter offered by the defendant's plea or answer, that his bill is not properly adapted to his case, he may obtain leave to amend his bill, and suit it to his case.(a) An amended bill is considered as an original bill, but new subpœnas are not necessary unless where there is a new engrossment of the bill.(b)

It is said, the defendant may, without notice, moveto amend his answer in a small matter, but if it be in a material point, even after issue joined, the court will, on an affidavit of surprise and payment of costs, allow an amendment.(c)

After the witnesses are examined, the bill cannot be amended unless the plaintiff withdraw his replication.(d)

After a decree, an amendment making an administrator a party has been permitted.(e)

A complainant may amend his bill at any time before answer, plea or demurrer filed, of course, and without the payment of costs. (f) No amendment is allowed, as of course, under the 7th of June, 1816, to a bill which has been sworn to by the party.(g)

If the defendant puts in an insufficient answer, which is excepted to as insufficient, and the defendant submits to answer further, or the answer shall on reference be found insufficient, in either case the complainant may amend his bill of course, and without costs, and the defendant shall answer the amended bill and exceptions together, and when the defendant shall plead or demur, and the plea or demurrer shall be overruled; the complainant may, before the time for answering expires, amend his bill of course, and without costs; and the defendant shall answer the amended bill, with the exceptions to the plea, if it shall stand for an answer; with liberty to except, and to be ex cepted to, and the defendant shall submit to answer the exceptions, or the exceptions shall on a reference be allowed.(h)

In all cases in which the defendant shall answer the complainant before the time expires for replying, the complainant may amend of course until it expires.

But if such amendment requires a new or further answer, then it shall be on the payment of costs to be taxed. But if a new or further answer is not thereby rendered necessary, then the complainant shall be only bound to furnish the defendant with a copy of the bill amended gratis.(i)

If the defendant demurs to the bill for want of parties, or other defect, which does not go to the equity of the whole bill, the complainant may amend at any time before the demurrer is set down for argument, or within fourteen days after receiving notice of the demurrer of course upon the payment of costs to be taxed, and in all cases where a defendant shall demur,