has been presented, and also a supplemental bill is filed, to introduce new facts discovered since publication, the cause will come on to be heard upon the matter of that supplemental bill, together with a rehearing of the original cause, and the Court will vary the decree upon the rehearing, taking into consideration the new or lately discovered facts."

In Moore v. Moore, 2 Vez. 598, the cause came before the Court upon a new bill, partly supplemental, in the nature of a bill of review, with new matter said to be existing at the time of the former decree and discovered since, and partly original as against one party, and on a petition of appeal from a decree made by the Master of the Rolls.

CHAPTER VI.

STAYING PROCEEDINGS UNDER A DECREE OR A DECRETAL ORDER.

PRESENTING a petition of appeal either to the House of Lords, The Wardens and Minor Canons of St. Paul v. Morris, 9 Ves. 316; Huguenin v. Baseley, 15 Ves. 180; or to the Lord Chancellor, or a petition of rehearing to any of the Courts, has not the effect of staying proceedings under a decree, nor of suspending the payment of costs. Tyson v. Cox, 3 Madd. 278.*

* In Roberts v. Totty, 19 Ves. 446, Lord Eldon, though he decided that an appeal does not form a ground to stay proceedings for costs previously commenced, viz. by subpoena, intimated, that if the appeal had been lodged before

To stay the proceedings, an application must be made to the Court or jurisdiction pronouncing the decree on a motion, of which notice is requisite. This practice was settled by the 46 N. O., which directs that every application to stay proceedings upon any decree or order which is appealed from, be made first to the judge who pronounced the decree or order.

The Court will not suspend the decree without a special ground the subject of discretion. Way v. Foy, 18 Ves. 452. The notice of motion to stay the proceedings until the hearing of the appeal is served on the clerks in court of all the parties interested in the decree. A motion of this description, the Court said, was in truth a rehearing, and as the Court assumes the decree to be right until reversed on appeal, it is very jealous of staying proceedings, and the bias is always in favour of the party having the decree. Willan v. Willan, 16 Ves. 216.

The grounds of suspending the proceedings may be furnished by the nature of the effect of the decree; what is to be done under it; the situation of the party entrusted with the fund in the mean time, and the irremediable mischief likely to result from the prosecution of the decree. Waldo v. Caley, 16 Ves. 212. Thus, pending an appeal from an order overruling a demurrer, the Court will stay proceedings for enforcing an answer where answering would render an appeal useless. Wood v. Milner, 1 J. & W. 636. So where a demurrer had been overruled by the Lord Chancellor, a motion to stay proceedings to enforce

any proceedings were taken for costs, it would form a ground to stay proceedings; but neither the cases nor the practice appear to warrant the dictum. In the above case, the bill was dismissed, with costs, which were taxed, and a subpoena sued out and served, but before an attachment was sealed, a petition of appeal was presented. A motion to stay payment of these costs till the appeal was heard was refused.

an answer pending an appeal to the House of Lords was granted on payment of the costs of the motion. King of Spain v. Machado, 4 Russ. 560. Irreparable mischief does not always found a ground for suspending the proceedings, for the effect of so doing would frequently be a reversal of the decree or order, as if an order was made to pay money into the hands of a foreigner about to quit this country, granting a motion to stay proceedings would, in effect, be deciding against the order. Walburn v. Ingilby, 1 M. & K. 85. In this case the Lord Chancellor said, if the argument of irreparable mischief were to prevail, the Court would suspend the execution of decrees and orders in very many of the cases decided. Id. 84.

In Way v. Foy, 18 Ves. 452, although the Court ordered a legacy to be paid out of Court, notwithstanding an appeal to the House of Lords, yet they required the legatee to give security to the Master.

Taking an account will not be stayed pending an appeal, but pending an appeal the Court will sometimes stay the sale of property which the decree has directed to be sold; although, if the property consists of personal chattels, remaining in the possession of an appellant, he must give ample security for their value. Nerot v. Burnand, 2 Russ. 56.

Pending an appeal the Court refused to stay the payment of the costs of the suit, and dismissed a motion for the purpose. Roberts v. Totty, 19 Ves. 446.

In Parrott v. Pallmer, a motion was made to the Lord Chancellor in Hilary Term, 1835, to stay the payment of the taxed costs of the suit until the hearing of the appeal, and an offer was made to pay the amount into Court. Lord Lyndhurst refused the motion, with costs, as contrary to practice; and said, that to justify such an application, a case must be proved that if the decree was reversed,

the party to whom the costs were payable was not in circumstances to refund them. The argument of the counsel in opposition to the motion was, that the costs were a debt, which the party was bound to pay to his solicitor, and that it would prejudice him if the payment were delayed, as he might be bound to pay what the Court had said the other party should pay.

In Monkhouse v. Corporation of Bedford, 17 Ves. 380, the defendants disputed plaintiff's title as mortgagee: on motion, the Court gave the defendant six months beyond the time fixed by the Master, upon their consenting to a receiver, and paying interest from the time of the suit, and the costs, plaintiff undertaking to repay costs if the decree was reversed.

The New Orders, as before stated, require that the motion. should, in the first instance, be made before the Court or jurisdiction which had pronounced the decree, and until such application has been refused by the Court below, the Lord Chancellor will not entertain a motion on the subject. If the application be refused by the Court below, an appeal motion will lie to the Lord Chancellor. If the party fails on his application to stay proceedings, he must pay the costs. Waldo v. Caley, 16 Ves. 212.

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CHAPTER VII.

PROCEEDINGS BY A PARTY COMING WITHIN THE JURISDICTION AFTER DECREE.

IF, after a decree, a defendant who has not appeared, and who is stated in the bill to be out of the jurisdiction, comes to this country, and is desirous of attending the proceedings in the Master's office, he should serve a notice of motion that he may be at liberty to appoint a clerk in court to enter an appearance for him in the cause, he submitting to be bound by the decree made in the cause dated

and that

he may be at liberty to attend before the Master in the same manner as if he had appeared and answered the plaintiff's bill, and the order is made accordingly. In White v. Hall, 1 R. & M. 332, a defendant who was one of the executors of the testator's will, and the father of the infant plaintiff, and who had recently returned from India, although he had been out of the jurisdiction until after the cause had been heard on further directions, moved that an appearance might be entered for him with the registrar, he consenting to abide by the decree already made, and submitting to account if required; the Vice Chancellor refused the motion. On appeal, the Lord Chancellor granted the motion, upon the defendant submitting to be bound by the decree and the accounts as they now stood, and directed him to appoint a clerk in court, who should be at liberty to enter an appearance for him. The motion was supported by the