A master has jurisdiction to stay execution on a judgment pending an appeal to the Court of Appeal: Oppert v. Beaumont, 18 Q. B. D. 435, C. A. 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; 38 L. T. 166.

The costs of such an application are, as a rule, to be paid by the applicant: Cooper v. C., 2 Ch. D. 492, C. A.; but the Court has a discretion: Adair v. Young, 11 Ch. D. 136, 139, C. A.; 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.

Where the appeal was against a Scotch co., resident out of the jurisdiction, stay of execution was refused, as the order of the Court of Appeal would be enforceable in Scotland under s. 122 of the Cos. Act, 1862: Re Queensland Merc. Co., Exp. Union Bank of Australia, W. N. (91) 132.

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. D. 575, C. A.

In the case of stay of execution for costs the application is to be made by motion to the Court of Appeal: Grant v. Bunque Franco-Egyptienne, 3 C. P. D. 202, C. A.; Morgan v. Elford, 4 Ch. D. 388, C. A.; 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. Ry. Co., 13 Ŵ. R. 1029; The Khedive, 28 W. R. 364; Hamill v. Lilley, 19 Q. B. D. 83, C. A.; Dan. 1082. For form of notice of motion, see D. C. F. 739.

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. D. 202, C. A.

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. D. 202, 205, C. A.; 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;

VOL. I.

3 L

!

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. D. 438, C. A.; Wilson v. Church, 12 Ch. D. 454, C. A.; 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. D. 88, C. A.

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. D. 769, C. A.

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.

day of

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 (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 Mann 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.

For form of application, see D. C. F. 756.

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.

And if anything is ordered to be done under the direction of the Court below, the order of the House must be made an order of Court before it can be carried into effect.

But where a judgment is simply affirmed, it is not necessary to make the order an order of the Court: A. G. v. Scott, 1 Ves. 419.

The order is to be obtained on motion as of course from the Court or the Judge where the action is pending, or to which or to whom it has been transferred: Man v. Ricketts, 3 D. & S. 446.

The motion may be ex parte: Wentworth v. Lloyd, 13 W. R. 146; British Dynamite Co. v. Krebs, 27 W. R. 575; 11 Ch. D. 448; on production of an office copy of an order of the House signed by the clerk of Parliament: but see L., alias H. v. H., L. R. 1 P. & M. 293.

An order of the House annulling a bankruptcy may be made an order of the Court in its appellate jurisdiction in bankruptcy; and the successful appellant was allowed his costs of an application for this purpose: Erp. Harding, 14 W. R. 825.

Where the order of the House directs payment of costs, the order may be

enforced by the House, if sitting: see Denison & Scott, 172; Wentworth v. Lloyd, 13 W. R. 146; 11 L. T. 365; 10 Jur. N. S. 1113; 5 N. R. 65.

If the order has been made an order of Court, it may be enforced by the process of the Court: Man v. Ricketts, 3 D. & S. 446; Wentworth v. Lloyd,

sup.

And an action may be brought on the order of the House for the costs awarded by it without making it an order of the Court: Marbella Co. v. Allen, 38 L. T. 815; 47 L. J. C. P. 601.

And where the costs are payable by an appellant who has entered into recognizances for payment of the respondent's costs, the recognizance may be estreated, and, notwithstanding the Debtors Act, 1869 (32 & 33 V. c. 62), the appellant may be imprisoned on process issued by the Q. B. Division: Re Smith, 2 Ex. Ď. 47.

Where no order as to the costs of the proceedings was made by the House, the Court below could not subsequently make any such order: L., alias H. v. H., L. R. 1 P. & M. 293; and see Gann v. Johnson, L. R. 6 C. P. 461.

And the Court below has no jurisdiction to make any order as to interest upon the costs of an appeal to the House: Lanc. & Yorks, Ry. Co. v. Gidlow, L. R. 9 Ex. 35; 7 H. L. 517.

No appeal lies to the House of Lords from an order of the Court of Appeal refusing leave to appeal: Lane v. Esdaile, 64 L. T. 666; or from an interlocutory order of the Q. B. D. in Ireland, or an order on appeal therefrom by the Court of Appeal in Ireland; E. of Gosford v. Irish Land Commrs, (1899) A. C. 435, H. L. Ir.; or from an order on a special case raising questions of fact only: Burgess v. Morton, (1896) A. C. 136, H. L.

The House of Lords will not disturb a finding of fact in both Courts below, unless clearly shown to be erroneous: The P. Caland v. Glamorgan Steamship Co., (1893) A. C. 207; McIntyre v. McGavin, (1893) A. C. 268, 275, 279. For forms of proceedings on appeal to H. L., see D. C. F. 739 et seq.; and as to procedure, Dan. 1082 et seq.

END OF VOL. I.

partition upon the affidavit of surveyors with evidence showing the fairness of the proposed division, the infant was declared a trustee for the Plts within the Act, and one of the Defts was appointed to convey the premises on his behalf. And see Bowra v. Wright, 4 De G. & S. 265; Eaton v. Hanwell, V.-C. S., 13 March, 1855, and Chap. XLI., "TRUSTEES," sup. p. 1266.

The same course was adopted, to save expense, where the shares were numerous and complicated, of declaring by one and the same order each party a trustee under the Act for the others, and vesting the whole estate in a new trustee to convey the several shares: Shepherd v. Churchill, 25 Beav. 21. If any of the parties interested is a lunatic the course is similar, except that the order to vest or convey must have been obtained upon application to the L. C. or other persons intrusted with the care of lunatics' estates: see Re Bloomar, 2 D. & J. 88; 6 W. R. 178; which case came before the L. JJ. upon an application in Lunacy, and under the Trustee Act, 1850, to carry into effect an order of the V.-C. S., made in the partition suit of Singleton v. Hopkins, 4 W. R. 107; 25 L. J. Ch. 150; 1 Jur. N. S. 1199 (in which the application was intituled), declaring the lunatic to be a trustee, and charging the costs upon the respective shares.

In Re Molyneux, 4 D. F. & J. 365, where the committee declined to take any steps to complete, the L. JJ. gave effect to a decree for the partition of an estate in which a lunatic was interested, and had been declared a trustee within the Act, by making a vesting order under sect. 30; and in Re Sherard, 1 D. J. & S. 421, an order was made in Lunacy and in Chancery, directing the committee of a lunatic tenant in tail to take all necessary steps and execute all assurances, &c., for giving effect to the partition.

Where a person of unsound mind not so found was interested in the partitioned property, the decree, after allotting the portions in severalty, directed mutual conveyances by the parties sui juris to each other and to the

person of unsound mind, and declared him a trustee within the Trustee Act, 1850, s. 30, for the parties sui juris. On application to the L. C. in Lunacy a subsequent order was made appointing the guardian ad litem to convey and execute all proper deeds, and convey the parts allotted to the persons sui juris for all the estate and interest therein of the non compos: Moorehead v. M., I. R. 2 Eq. 492.

And upon the question whether the application should be in Chancery or in Lunacy, or concurrently under both jurisdictions, see Chap. XLI., "TRUSTEES," pp. 1258, 1259.

TITLE DEEDS.

A judgment for partition generally contains a direction that after the partition shall have been made such of the title deeds, &c. in the custody or power of any of the parties as relate exclusively to any part of the allotted premises shall be delivered to and retained by the party to whom such part has been allotted.

The deeds are sometimes ordered to be deposited in the Central Office for the mutual benefit of the parties: see Trodd v. Downs, 2 Atk. 304, 8 May, 1742 (1741), B. 406, cited 2 Ves. jun. 568. But except in the case of such of the deeds as relate to an infant's share (see Form 2, sup. p. 1883), this does not appear to be the proper form of order: see Jones v. Robinson, 3 D. M. & G. 910.

If the parties are all equally interested, the Plt, but if not, then the party entitled to the share or estate of greatest value, is generally entitled to the custody of the deeds on entering into a covenant (or acknowledgment of liability, v. sup. p. 1883) to produce and allow copies to be taken when required; or on an undertaking to abide by any order the Court may make as to the same, with liberty to either party to apply for directions concerning the same: see Elton v. E., 27 Beav. 632; Jones v. Robinson, sup. ; and it seems that on giving that undertaking the person in whose custody the deeds are will be allowed to retain them: S. C.; Lord Cardigan v. Montagu, L. C., 6 June, 1755, A. 406.

Where several persons were interested in the estate the partition deed was directed to be enrolled at the expense of all parties, with liberty for any person interested to have a duplicate at his own expense: Elton v. E., sup.