ground, or by leave of court. It is not enough that additional evidence is offered by the affidavits of the matter urged in support of the former motion.39 But the fact of hearing the same matter a second time is proof that the court, either before or at such hearing, gave leave to present the matter anew.40

§ 423. Petitions.

Petitions are applications in writing for an order of court, stating the circumstances upon which they are founded, and are resorted to whenever the nature of the application to the court requires a fuller statement than can be conveniently made in a notice of motion.41 In general, a petition cannot be presented in a cause until the bill is filed. The case of a complainant applying to sue in forma pauperis appears to form an exception to this rule.42 A petition may be presented by any person, whether a party to the suit or not.43 It is said that petitions are now rarely filed by a party to a cause, since any relief which he desires can usually be obtained equally as well by a motion supported by affidavit containing the allegations which would be necessary in a petition, but this is a question governed largely by local practice.

§ 424. Form of petition.

44

The petition must be entitled in the cause in which it is presented. When it is presented in some collateral matter, or there is no suit pending, it is entitled, "In the matter of A. B.," etc. It

89 Hoffman v. Livingston, 1 Johns. Ch. (N. Y.) 211; Ray v. Connor, 3 Edw. Ch. (N. Y.) 479; Dodd v. Astor, 2 Barb. Ch. (N. Y.) 395; Stacy v. Stephen, 78 Minn. 480, 81 N. W. 391; A. B. Dick Co. v. Wichelman, 109 Fed. 81; Van Duzer v. Caskie, 13 Colo. App. 229, 56 Pac. 986.

40 Clopton v. Clopton (N. D.) 88 N. W. 562; Harris v. Brown, 93 N. Y. 390.

41 Shaft v. Phoenix Mut. Life Ins. Co., 67 N. Y. 544; Bergen v. Jones, 4 Metc. (Mass.) 371; 1 Barbour, Ch. Pr. 578; Codwise v. Gelston, 10 Johns. (N. Y.) 508; Shipbrooke v. Hinchinbrook, 13 Ves. 394; Dyckman v. Kernochan, 2 Paige (N. Y.) 26. See Foscue v. Lyon, 55 Ala. 441.

42 Receiver of State Bank v. First Nat. Bank of Plainfield, 34 N. J. Eq. 450.

43 1 Barbour, Ch. Pr. 579. 44 Foster, Fed. Pr. § 199.

states by whom it is presented, and the particulars of the case, and concludes with a prayer that the required order be made.45 If the applicant is not a party, he should state his residence and description. Brevity and form are the two things chiefly to be observed in drawing petitions, to which may be added care to avoid scandal or impertinence, for which a petition, as well as any other proceeding, may be referred.47 A petition is usually subscribed by the party making it, but unless it is for a rehearing or appeal, under the English practice, it is not required to be signed by counsel.+8 Petitions are usually veri

fied.49

$ 425. Notice of petitions.

All petitions, except those which are of course, require service upon all parties interested. This service must be made in the same manner, and the same length of time before presenting the petition, as a notice of motion is required to be served.50 Service of a petition is effected by delivering and leaving with the person served a copy of the petition, and at the same time showing to him the original, unless the court otherwise directs.51

$426. Objections to petitions.

Objections to the form of a petition may be taken by demurrer.52 It is also said that it is common practice to move to dismiss the petition.53 A demurrer to a petition filed with

451 Barbour, Ch. Pr. 580.

46 Glazbrook v. Gillatt, 9 Beav. 492; Foster, Fed. Pr. § 202.

471 Barbour, Ch. Pr. 580.

48 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1605; Hathaway v. Scott, 11 Paige (N. Y.) 173.

49 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1605; Anonymous, Hopk. Ch. (N. Y.) 101; In re Christie, 5 Paige (N. Y.) 242. For forms of peti tions, see supra, §§ 180, 372, 404, 405, and post, §§ 542, 836, in which are set forth various forms of petitions.

50 1 Barbour, Ch. Pr. 580; Foster, Fed. Pr. § 202.

51 Foster, Fed. Pr. § 202.

52 Gibson, Suit in Ch. § 778; Mitford & T. Pl. & Pr. in Eq. 448; Foster, Fed. Pr. § 202.

53 Gibson, Suit in Ch. § 778.

out leave and after answer and submission comes too late; by answering, the defendant waives all objections to the form.54

§ 427. Answering petition.

An adverse party may answer a petition by denying the facts therein stated, or alleging matters of avoidance. Such an answer should be verified by affidavit.55 A party having objection to the form of a petition, who has also a case upon the merits, should be prepared with his affidavits in opposition to the petition upon the merits, in case the objection to the form should be overruled, as the court will not permit the petition to stand over in order that he may file affidavits except upon terms of his paying the costs thereof.56

§ 428. Hearing on petition.

The general practice, upon the hearing of petitions, is nearly the same as that upon motions.57 If, upon the hearing, the petitioner does not appear, the petition will be dismissed, with costs, upon the production of a copy of the petition, with a notice of presenting the same, and of due proof of service thereof.58 If no one appears in opposition to the petition, an order conformable to its prayer will be made on producing an affidavit of service of the petition and notice upon all parties interested, provided the case justifies the order.59 The rules with regard to reading affidavits, and the general practice as to evidence, upon the hearing of petitions, is substantially the same as upon the hearing of motions.60

54 Newman v. Moody, 19 Fed. 858.

55 Mitford &T. Pl. & Pr. in Eq. 448; Gibson, Suit in Ch. § 778.

56 1 Barbour, Ch. Pr. 580; Ex parte Bellott, 2 Madd. 261. In New Jersey, no answer to the petition is required. Beach, Mod. Eq. Pr. § 571, citing Crane v. Brigham, 11 N. J. Eq. 291; Coxe v. Halsted, 2 N. J. Eq. 311.

571 Barhour, Ch. Pr. 580; Beach, Mod. Eq. Pr. § 570; Foster, Fed. Pr. § 202.

58 1 Barbour, Ch. Pr. 580; Beach, Mod. Eq. Pr. § 570.

59 1 Barbour, Ch. Pr. 581; Beach, Mod. Eq. Pr. § 570.

60 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1608; Beach, Mod. Eq. Pr. § 570; Jones v. Turnbull, 17 Jur. 851; In re Pickance's Trust, 10 Hare, xxxv.

An order is a command, direction, or decision of the court on some intermediate point or issue in the cause, but without finally disposing of the main issue or issues in the cause.61 A decree is a final judgment in the cause. An order is an interlocutory judgment.62 Orders are sometimes designated as "rules." A rule and an order are practically synonymous.63 Orders are also sometimes classified as either common, special, or by consent.

64

§ 430. Common orders.

Common orders, which are sometimes designated as "orders of course," are orders to which a party, by the rules and practice of the court, is entitled of course, without showing special cause. A common order is made without notice to the adverse party, and is drawn up without any direct application to the court. Common orders are largely regulated by local rules and practice. Thus, in Illinois, there are no orders entered without direct application to the court.66

§ 431. Special orders.

All orders made on special application to the court are designated "special orders." This term applies to orders made by the court ex parte, as well as to such as are made upon notice to the adverse party.67 They are those orders which the court, in the exercise of its discretion, may either grant or refuse.68

61 Halbert v. Alford (Tex.) 16 S. W. 814; Loring v. Illsley, 1 Cal. 24. 62 Nolton v. Western R. Corp., 10 How. Pr. (N. Y.) 97.

63 Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 29 Atl. 76, citing Black, Judgm. 5, 6.

64 1 Barbour, Ch. Pr. 581. For examples of forms of order, see supra, §§ 152, 165, 181, 224, 230, 231, 233, 282, 287, 289, 309, 345, 348-351, 366, 369, 372, 375, 408, 410, 411, and index.

65 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1589; Beach, Mod. Eq. Pr. § 593;

1 Barbour, Ch. Pr. 582.

66 For practice in federal courts, see United States Equity Rules 4-6. 671 Barbour, Ch. Pr. 582.

es Beach, Mod. Eq. Pr. § 593; 2 Daniell, Ch. Pl. & Pr. 1589.

A special order entered under direction of the court, although in violation of one of its standing rules, cannot be disregarded by the parties or the officers of the court, so long as it remains in force.69

An order by consent is one in which the parties agree upon the terms of the order in a cause of which the court has jurisdiction.70 Such an order cannot be modified or varied in an essential part without the assent of both parties, unless there is fraud, collusion, mistake, or some other ground which would invalidate an agreement between the parties.71 But if a party to an order by consent takes proceedings which are inconsistent with the execution of it, or is guilty of unreasonable delay in his application to vacate it, he will be considered as having waived his right to insist upon the rule just mentioned.72 Orders by consent must be founded upon the written consent of the parties or their solicitors, filed at the time of entering the order,73 or else upon the oral consent of the parties, made in open court. Such consent should be incorporated in the order.74 Where the order states that it is made by consent of all parties, the recital is conclusive, and courts of review are bound by such recital.75 As a general rule, consent orders are not appealable.76

69 1 Barbour, Ch. Pr. 582; Osgood v. Joslin, 3 Paige (N. Y.) 195; Studwell v. Palmer, 5 Paige (N. Y.) 166; Jackson v. Jackson, 3 Cow. (N. Y.) 73; Ross v. Griffin, 53 Mich. 8.

70 Henry v. Hilliard, 120 N. C. 479, 27 S. E. 130.

711 Barbour, Ch. Pr. 583; Monell v. Lawrence, 12 Johns. (N. Y.) 521; Leitch v. Cumpston, 4 Paige (N. Y.) 476; Downing v. Cage, 1 Eq. Cas. Abr. 165; Oldershaw v. King, 26 Law J. Exch. 384; Fussell v. Silcox, 5 Taunt. 628; Wilding v. Sanderson, 66 Law J. Ch. 684.

721 Barbour, Ch. Pr. 583; Bernal v. Donegal, 3 Dow, 146; Attorney General v. Tomline, 7 Ch. Div. 388, 47 Law J. Ch. 473.

781 Barbour, Ch. Pr. 583.

74 Smith v. Grant, 11 Civ. Proc. R. (N. Y.) 354.

75 Roby v. Title Guarantee & Trust Co., 166 Ill. 336, 46 N. E. 1110; Henry v. Hilliard, 120 N. C. 484, 27 S. E. 130. Where a party consents to an order that a receiver may advance money to protect property in his charge, such party cannot impeach it on a ground which existed