11. Stay of Execution pending an Appeal on Payment into Court— O. LVIII. 16.

UPON the application &c., And the Applicant A. by his solr undertaking to lodge in Court the sum of £-, it is ordered that the said A. do on or before &c., lodge in Court to the credit of &c., the said sum of £—, as directed in the schedule hereto; And it is ordered that upon such lodgment in Court being made, no proceedings be taken to enforce the order dated &c., as to the said sum of £- pending the appeal of the said A.-[Add Lodgment Schedule, Form 1.]

12. Stay of Execution for Costs on payment into Court, after
refusal of the Application in the Court below.

UPON motion this day made &c., This Court doth order that the Deft C. do within (twenty-one days) after the Taxing Master shall have made his certificate pursuant to the judgment dated &c., lodge the amount of the costs thereby directed to be taxed, including the costs of the Deft H., in Court to the credit of this cause &c., to an account to be entitled, "The taxed costs of the Plt and the Deft H.," as directed in the schedule hereto, instead of paying the same as directed by the said judgment; And it is ordered that upon such lodgment being made, all proceedings under the said judgment to enforce payment of such costs be stayed until after the appeal of the said Deft C. from the said judgment has been disposed of.-Deft to pay to the next friend of the Plt the Plt's costs of the application, to be taxed &c.-[Add Lodgment Schedule, Form 1.]-See Cooper v. C., C. A., 12 April, 1876, A. 1049; 2 Ch. Div. 492.

13. Appeal to the House of Lords-Stay of Execution for Costs

refused on Personal Undertaking of Solicitor to refund.

UPON motion this day made &c., And upon hearing &c., And N., of the firm of B. & Co., the solr for the Defts other than the W. & R. Ry. Co., personally undertaking, in the event of the order dated &c., being reversed on appeal to the House of Lords, to abide by any order which this Court may make as to their refunding to the Plts the costs by the said order directed to be paid to them by the Plts, This Court doth not think fit to make any order on this motion, but doth order that the Plts B. &c., pay to the Defts E. &c., their costs of this application, to be taxed by the Taxing Master.-See Beattie v. Lord Ebury, L.JJ., 24 Feb. 1873, A. 442; 28 L. T. N.S. 458.

For order on like motion that the Deft should pay into Court a sum certified to be due in respect of the Plt's liability in respect of shares in the G. Co., and that the same should be invested in Cons. £3 p. c. Anns, and the dividends as they accrued invested in like anns; and that all further proceedings under the order appealed from should be stayed until after the hearing of the petition of appeal to be presented to the House of Lords pursuant to a notice served by the Deft on the Plt, and that the Deft should

pay the costs of the application, see Merry v. Nickalls, L. C. and L. JJ., 29 Jan. 1873, B. 334; 8 Ch. 205.

And for subsequent order on summons, after dismissal of the appeal by the House of Lords, directing the stock and accumulations to be sold, and the proceeds paid to the Plt or his nominee, see S. C., V.-C. B., at Chambers, 5 Aug. 1875, B. 2013.

STAY OF PROCEEDINGS PENDING APPEAL GENERALLY.

Applications to stay proceedings on appeal must be founded on two points, which are essential; first, that a serious injury will result to the party applying if the application is not granted; secondly, that he has come promptly to make it: Nawab Khan v. Rajah Oojoodhyaram Khan, L. R. 1 P. C. 8, 12.

The principles on which such applications will be granted vary according to the nature of the proceedings to be stayed, but as a general rule the Court will stay all such proceedings as would render a successful appeal nugatory: Wilson v. Church, 12 Ch. Div. 454; Polini v. Gray, 12 Ch. Div. 438..

Stay of Execution for Costs.-Where the order appealed from directs the appellant to pay costs, the costs must be paid according to the order, on the personal undertaking of the respondent's solr to refund if the appeal is successful: Grant v. Banque Franco-Egyptienne, 3 C. P. Div. 202; Morgan v. Elford, 4 Ch. Div. 352; Merry v. Nickalls, 8 Ch. 205; Beattie v. Lord Ebury, 28 L. T. N.S. 458, Form 13, sup.; Gibbs v. Daniel, 4 Giff. 41, n.; Polini v. Gray, 28 W. R. 360.

Under special circumstances, e. g., where the respondents are resident abroad, so that the solr would be the only person liable to refund, his personal undertaking has been held insufficient without satisfactory security: Burdick v. Garrick, 5 Ch. 453.

If the undertaking is not given, or the security is not found, execution will be stayed on payment of the amount into Court: see Cooper v. C., 2 Ch. D. 492, Form 12, sup.; Burdick v. Garrick, 5 Ch. 453, 455; and if the undertaking is refused, it is not of course to stay proceedings as to costs: A. G. v. Emerson, 24 Q. B. Div. 56.

And payment of costs will not be stayed with a view to a possible set-off as the result of pending proceedings in the same action: Grant v. Banque Franco-Egyptienne, 3 C. P. Div. 202; or after an order of the Court of Appeal has given the opposite party a present right to receive costs: Automatic Weighing Co. v. Combined, &c. Weighing Co., 58 L. J. Ch. 647; 61 L. T. N.S. 536; 37 W. R. 636.

The application of these rules is not affected by a possibility of future costs becoming payable by the respondent to the appellant at some subsequent stage of the case: Grant v. Banque Franco-Egyptienne, 3 C. P. Div. 202.

An application for a stay, unless made immediately after judgment, must be supported by an affidavit showing special circumstances: Tuck v. Southern Counties Deposit Bank, 42 Ch. D. 471.

Stay of Execution for payment of Money. The practice in error, or on appeal, as between the Court of Appeal and the House of Lords, remains unaffected by the Jud. Acts and Rules: Justice v. Mersey, &c. Co., 1 C. P. D. 576.

Therefore, in the case of an action pending in the Q. B. Division, a stay of execution, pending an appeal to the House of Lords, is, on bail being given under the C. L. P. Act, 1852 (15 & 16 V. c. 76), s. 151, a matter of right: S. C. In the case of an action pending in the Chancery Division, the converse practice on appeal from the Court of Chancery is still in force, whether the appeal be to the Court of Appeal or to the House of Lords: Cooper v. C., 2 Ch. Div. 492, Form 12, sup. ; Morgan v. Elford, 4 Ch. Div. 352. The amount is to be paid to the respondent on his giving security to refund in case of the success of the appeal, or in default of security execution will be stayed on payment of the amount into Court: Merry v. Nickalls, 8 Ch. 205; Burdick v. Garrick, 5 Ch. 453; Barrs v. Fewkes, 1 Eq. 392; Topham v. D. of Portland, 1 D. J. & S. 603; Mackintosh v. G. W. Ry. Co., 13 W. R. 1029;

Mayor, &c. of Gloucester v. Wood, 1 Ph. 493; 3 Ha. 150; Touche v. Metn. Ry. Warehouse Co., 40 L. J. Ch. 496; O'Reilly v. Walsh, I. R. 7 Eq. 253.

But where an amount ordered to be paid by a judgment had been paid into Court pending an appeal, and on appeal the judgment was reversed, the fund was not retained in Court pending an appeal to the House of Lords against the order reversing the judgment: Atherton v. British Nation Co.,

5 Ch. 720.

Stay of Proceedings in Chambers.-Generally speaking the Court never stays the taking of an account, and does not direct security for the result of an account, either on appeals to the Court of Appeal, or to the House of Lords: Gwynn v. Lethbridge, 14 Ves. 506; Nerot v. Burnand, 2 Russ. 55, 58; Murray v. Clayton, 15 Eq. 117, 121; unless irreparable injury would be caused, as by disclosing the names of customers: Adair v. Young, 11 Ch. Div.

136.

But a sale will be suspended: Rowley v. Adams, 9 Beav. 348; Nerot v. Burnand, 2 Russ. 55, 58; Dan. 1278.

Distribution of a fund in Court, or payment of a fund out of Court, will not be stayed, pending appeal in the absence of special circumstances: Bradford v. Young, Re Falconar's Trusts, 28 Ch. Div. 23; but the persons to receive the money must, if required, give security to restore it if the order is reversed, and in default of such security the money will be retained in Court: Lord v. Colvin, 1 Dr. & Sm. 475; Swift v. Grazebrook, 3 Mac. & G. 6; Way v. Foy, 18 Ves. 452; Waldo v. Cayley, 16 Ves. 213; Bourne v. Buckton, 35 L. J. Ch. 851.

A sale of consols in Court was stayed on the undertaking of the appellant, in case his appeal was unsuccessful, to make good the difference between the income actually produced and interest at £4 p. c.; and to pay the costs of the sale and re-investment: Brewer v. Yorke, 20 Ch. Div. 669; and where a Plt to whom a fund had been ordered to be paid out had been abroad for two years, and his address was not known, the fund was retained in Court on the applicants giving a similar undertaking: Bradford v. Young, sup.

Where the order appealed from is for leave to do an act, e. g., for a trustee in bankruptcy to disclaim a lease, application for a stay of proceedings must be made immediately, as after the act is done there can be no withdrawal of the leave: Exp. Sadler, Re Hawes, 19 Ch. Div. 122.

Suspension of Injunctions and other Orders.-In these cases the usual course is to stay proceedings pending an appeal only when the proceedings would cause irreparable injury (not mere inconvenience or annoyance), as by destroying the goodwill of a business: Walford v. W., 3 Ch. 812; Story v. Lord Lennox, 1 My. & Cr. 685; and see Flower v. Lloyd, W. N. (77) 81; Hyam v. Terry, 29 W. R. 32.

The same principle applies in the case of dissolving or postponing injunctions: Walburn v. Ingilby, 1 My. & K. 84; Penn v. Bibby, 3 Eq. 308.

A decree for specific performance will be enforced with the exception of the directions to execute the conveyance: Gwynn v. Lethbridge, 14 Ves. 185; or if the conveyance is to be executed, notice of the pending appeal will be indorsed on the deed: Wilson v. West Hartlepool Co., 34 Beav. 414; and for a case in which the execution of the decree was suspended, see Price v. Salusbury, 11 W. R. 1014; and see Dan. 1278.

An order for specific delivery of chattels will be enforced, pending an appeal, on the undertaking of the respondent to restore them if the order should be reversed: Harrington v. H., 3 Ch. 575, 576.

On the question when discovery or production of documents under the practice of the Court of Chancery would be stayed, see Walburn v. Ingilby, 1 My. & K. 84; Dan. 1278; Drake v. D., 3 Ha. 528.

STAY OF PROCEEDINGS PENDING APPEALS TO THE COURT OF APPEAL.

By O. LVIII. 16, an appeal is not to operate as a stay of execution or of proceedings under the decision appealed from, except so far as the Court or a Judge below or the Court of Appeal may order; and no intermediate act or proceeding is to be invalidated except so far as the Court appealed from may direct.

Applications for a stay of proceedings under the rule are to be made, in

the first instance, to the Court below: A. G. v. Swansea Co., 9 Ch. Div. 46; Goddard v. Thompson, 47 L. J. Q. B. 382; 26 W. R. 362; by summons or motion on notice: see Form 11, sup. p. 742; Rep. of Peru v. Weguelin, 24 W. R. 297; even though the action has been dismissed, if the application is for stay of proceedings under the order of dismissal, e. g., for payment of costs: Otto v. Lindford, 18 Ch. Div. 394; but an application which the Court below, having dismissed the action, cannot grant, as for an injunction to restrain interim dealings with property, will be entertained by the Court of Appeal: Wilson v. Church, 11 Ch. Div. 576; 12 Ch. Div. 454; Polini v. Gray, 12 Ch. Div. 438.

If this application is refused in the Court below it may be renewed by motion in the Court of Appeal; and in such cases the practice and the form of the order is the same as on original motions, though the jurisdiction of the Court is properly appellate: Cooper v. C., 2 Ch. Div. 492, Form 12, sup. p. 742; A. G. v. Swansea Co., 9 Ch. Div. 46.

The application must be supported by special circumstances where a stay has been refused by the Judge at the trial: Monk v. Bartram, (1891) 1 Q. B. (C. A.) 346.

The rule gives full discretion to the Court against whose decision an appeal is pending to refuse a stay of proceedings: A. G. v. Emerson, 24 Q. B. Div. 56. The jurisdiction under the rule is concurrent, and an application to the Court of Appeal for a stay refused by the Court below is an original application to be brought within a reasonable time, but not necessarily within twenty-one days from the refusal: Cropper v. Smith, 24 Ch. Div. 305.

A master has jurisdiction to stay execution on a judgment pending an appeal to the Court of Appeal: Oppert v. Beaumont, 18 Q. B. Div. 435.

The Court of Appeal will not grant a stay of proceedings on reversing an order refusing a rule for a new trial, in which case the stay of proceedings should be obtained on summons in Chambers from the Judge of the Court below: Goddard v. Thompson, 26 W. R. 362; 47 L. J. Q. B. 382.

The costs of such an application are, as a rule, to be paid by the applicant: Cooper v. C., sup. ; but the Court has a discretion: Adair v. Young, 11 Ch. Div. 136, 139; and the costs may be made costs in the appeal or action.

A similar rule was followed under the practice before the Jud. Acts: Richardson v. Bank of England, 1 Beav. 153; Topham v. D. of Portland, 1 D. J. & S. 603; Merry v. Nickalls, 8 Ch. 205; but not invariably: E. Shrewsbury v. Trappes, 2 D. F. & J. 172; Walford v. W., 3 Ch. 812; Burdick v. Garrick, 5 Ch. 453.

STAY OF PROCEEDINGS PENDING APPEALS TO THE HOUSE OF LORDS.

The mode of application for a stay of proceedings pending an appeal to the House of Lords is, in the case of a stay on bail in error under the C. L. P. Act, 1852 (15 & 16 V. c. 76), s. 151, by summons in Chambers: Justice v. Mersey, &c. Co., 1 C. P. Div. 575.

In the case of stay of execution for costs the application is to be made by motion to the Court of Appeal: Grant v. Banque Franco-Egyptienne, 3 C. P. Div. 202; Morgan v. Elford, 4 Ch. Div. 388; Gibbs v. Daniel, 4 Giff. 41, n.

In the case of stay of execution or of proceedings under any order on appeal from the Chancery Division, the application is to be made by motion to the Court of Appeal: Merry v. Nickalls, 8 Ch. 205; Burdick v. Garrick, 5 Ch. 453; Walford v. W., 3 Ch. 812; Harrington v. H., 3 Ch. 575; Topham v. D. of Portland, 1 D. J. & S. 603; Mackintosh v. G. W. R. Co., 13 W. R. 1029; The Khedive, 28 W. R. 364; Hamill v. Lilley, 19 Q. B. Div. 83.

For cases in which similar motions were made to a Court of first instance, see Price v. Salusbury, 11 W. R. 1014; Rowley v. Adams, 9 Beav. 348.

The appeal must be actually pending, or the applicants must give an undertaking to present an appeal within a limited time: Grant v. Banque Franco-Egyptienne, 3 C. P. Div. 202.

The appeal must include the order under which the proceedings to be stayed are being carried on: Rowley v. Adams, 9 Beav. 348.

If the application is refused, it seems that it may be renewed to the House of Lords, and that the House will in that case exercise its jurisdiction to order a stay of proceedings until the appeal is heard: see Gwynne v. Lethbridge, 14 Ves. 585, 586; Denison & Scott, pp. 77, 78.

Where the order appealed from dismisses an action, and it is sought to preserve the benefit of the relief sought by the action, not merely to stay execution for the costs of action pending the appeal, the order must be drawn up so as to maintain the jurisdiction of the Court for this purpose, notwithstanding the termination of the action by dismissal: Galloway v. Mayor, &c. of London (No. 2), 3 D. J. & S. 59; Oddie v. Woodford, 3 My. & Cr. 625; this may now be done by the Court of Appeal under Jud. Act, 1873, s. 25 (8), and O. LII. 3, on an application, made before the order of dismissal is passed and entered, to frame the order accordingly: Polini v. Gray, C. A., 23 July, 1879; the decision in Price v. Salusbury, 11 W. R. 1014, not being followed.

In the absence of special circumstances, the applicant must pay the costs of the application, inasmuch as he asks for an indulgence: Grant v. Banque Franco-Egyptienne, 3 C. P. Div. 202, 205; Merry v. Nickalls, 8 Ch. 205; Topham v. D. of Portland, 1 D. J. & S. 603.

But there is a discretion in the Court to order, under special circumstances, the costs to abide the result of the appeal: Burdick v. Garrick, 5 Ch. 455; Walford v. W., 3 Ch. 812, 815; 5 Ch. 455, n.; and see E. Shrewsbury v. Trappes, 2 D. F. & J. 172,

Where success on an appeal would be useless if interim protection were not given, an injunction will be granted or proceedings stayed: Polini v. Gray, 12 Ch. Div. 438; Wilson v. Church, 12 Ch. Div. 454; but the appellants will be put on terms to speed the appeal, and the Court will not interfere if the appeal appears to be not bona fide: Wilson v. Church, sup.

Trial of issues of fact will not be stayed pending appeal to the House of Lords on a question of law: Re Palmer, 22 Ch. Div. 88.

Execution for costs pending appeal to the House of Lords will not be stayed unless it is shown that the respondent would be unable to repay: Barker v. Lavery, 14 Q. B. Div. 769.

A stay of execution will not be granted to enable a party dissatisfied with the damages assessed by a jury to decide whether he shall appeal to the House of Lords: Webber v. L. B. & S. C. Ry. Co., 51 L. J. Q. B. 154.

-

14. Order of the House of Lords made an Order of the Court. WHEREAS by an order, dated &c., made by the Rt. Hon. the Lords Spiritual and Temporal in Parliament assembled, after hearing counsel on the day of (and also on the day of -), upon the petition and appeal of &c., from the order dated &c., made on the hearing of the appeal of the (Plt) in this action from the judgment &c., It was ordered and adjudged by the Lords Spiritual and Temporal in Parliament assembled, that &c. [Recite order of the House of Lords]; Now upon motion &c., by counsel for &c., and upon producing the said order of the House of Lords, This Court doth order, that the said order be made an order of this Court; [If the order of the House directs accounts or inquiries, add, And it is ordered, that the following accounts (and inquiries) be taken (and made) &c.; And if costs are to be taxed here, And it is ordered, that the costs of &c. be taxed by the Taxing Master, and be paid by &c., to &c.]-See Man v. Ricketts, V.-C. K. B., 22 May, 1849, B. 1553; 3 D. & S. 446; affd. L. C., 26 Feb. 1852, B. 556; Blakemore v. L. & S. W. Ry. Co., V.-C. S., 5 Dec. 1870, A. 2955; V. Holmesdale v. Sackville- West, V.-C. J., 16 June, 1870, A.

1651.

If the order of the House of Lords reverses or varies the order appealed from, it should be made an order of the Court, so that the order appealed from may not remain as unrepealed on the records of the Court: see L., alias H. v. H., L. R. 1 P. & M. 294.