the Court of Appeal for a stay of execution. Hamill v. Lilley (C. A. 1887), 19 Q. B. D. 83, 56 L. J. Q. B. 337; and see The Khedive (C. A. 1879), 5 P. D. 1.

By R. S. C. Ord. 58 (as to appeals to the Court of Appeal), r. 16 "an appeal shall not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the Court appealed from, or any judge thereof, or the Court of Appeal, may order; and no intermediate act or proceeding shall be invalidated, except so far as the court appealed from may direct."

The rule of the principal case has been followed as the guide for the Court in carrying out the rules under the Judicature Acts. Cooper v. Cooper (C. A. 1876), 2 Ch. D. 492, 45 L. J. Ch. 667; Morgan v. Elford (C. A. 1876), 4 Ch. D. 352, 388.

But in the case of The Attorney General v. Emerson (C. A. 1889), 24 Q. B. D. 56, 59 L. J. Q. B. 192, the judges in the Court of Appeal all strongly protested against the position that there was any such established practice as to limit their discretion under the terms of the statutory rule. The question there raised was whether the Court of Appeal could refuse to stay execution for costs pending an appeal to the House of Lords, without putting the respondent's solicitor upon an undertaking to repay them in the event of the appeal being successful. It was argued on the part of the Crown (appellant), that according to the established practice this undertaking must be given in every case. The Court denied the proposition argued for, but, under the circumstances of the case, required the undertaking to be given.

In Barker v. Lavery (C. A. 1885), 14 Q. B. D. 769, 54 L. J. Q. B. 241, where there was an application by the defendant to the Court of Appeal for a stay of execution for costs pending an appeal to the House of Lords, the Court laid down the rule that the application is not to be granted as a matter of course; and that there must be evidence to show that the plaintiff would be unable to repay the costs if he should be unsuccessful before the House of Lords. In all cases some special circumstances must be shown by affidavit. The Annot Lyle (C. A. 1886), 11 Pro. D. 114, 55 L. J. P. D. & A. 62. And compare cases cases under No. 6, infra.

AMERICAN NOTES.

See note to No. 3, ante, p. 258.

WHERE there is a bona fide appeal from a judgment which, if carried out, would render a successful appeal nugatorye. g. for the distribution of money in Court amongst the holders of bonds to bearer-the Court will make an order for staying proceedings under the judgment so far as necessary to prevent this consequence, upon terms of speeding the appeal. But it will not interfere with the judgment, so far as it ordered the payment of costs, except by putting the solicitor who was to receive them upon an undertaking to repay them.

Wilson v. Church.

12 Ch. D. 454-461 (s. c. 28 W. R. 284).

This action was brought by W. M. Wilson on behalf [454] of himself and all other holders of the bonds of the Republic of Bolivia, and the Republic of Bolivia, against Colonel Church, the National * Bolivian Navigation Com- [* 455] pany, the Maderia and Mamoré Railway Company, Messrs. Lloyd and Lambert, who were trustees for the bondholders, and L. Nash, a dissentient bondholder, claiming a declaration that a fund of a large amount in the hands of the trustees should be returned to the bondholders and not applied in the construction of the works or the railway.

On the 20th of June, 1879, judgment was pronounced by the Court of Appeal in favour of the plaintiff, ordering the trust fund to be distributed among the bondholders, and that the defendants other than the trustees should pay the costs of the action, the plaintiff to have his costs in the first instance paid out of the fund. The defendants, the National Bolivian Navigation Company and the Maderia and Mamoré Railway Company, and L. Nash, proposed to present a petition of appeal to the House of Lords against this judgment. They now moved that on the undertaking by the defendants to present their petition of appeal within

No. 6. Wilson v. Church, 12 Ch. D. 455, 456.

a month all proceedings under the judgment, except as to the taxation and payment of the costs, might be stayed until after the appeal should have been decided; and that all proceedings under such judgment to obtain payment of the costs might be stayed until after the decision of the appeal, unless the solicitors of the parties to whom costs were made payable should give their personal undertaking to refund in case the judgment should be reversed.

The plaintiff filed an affidavit by one of his solicitors stating that the costs amounted to between £4000 and £5000, that the National Bolivian Navigation Company was a company incorporated and domiciled in the United States of America, that neither that company nor the Maderia and Mamoré Railway Company had any property which could be made available for the payment of the plaintiff's costs, and that the defendant, L. Nash, had no means to pay the same costs, and was merely a nominal party to the action whose costs were guaranteed by the two companies.

4 July, 1879, Benjamin, Q. C., and Rigby, in support of the application:

-

The appeal in this case is a matter of right, no leave of the Court being necessary; and in such a case the practice of the Court has always been to order a stay of execution of a [*456] judgment pending the appeal if the appellant would be irremediably injured by carrying it into execution, in case his appeal should succeed. When the appeal is a matter of right the Court will always so deal with the subject-matter of the appeal as not to render the appeal, if successful, nugatory. In the present case the whole of the fund is in the power of the Court, and cannot be distributed without the Court's permission. The judgment appealed from directs the entire distribution of the funds; the bonds are payable to bearer; it is known that from 900 to 1000 persons are interested in the fund; many of the bonds are held by persons on the continent of Europe, and others by persons in South America. If the fund is now distributed it can never be recovered. On the other hand the plaintiff and the other bondholders cannot be injured by a stay of execution, for the fund is perfectly secure and is paying interest at £4 per cent.

[JAMES, L. J. What pecuniary interest have the two companies, qua companies, in the fund? If the money is laid out in making the railway, as the companies wish it to be, the under

taking will be charged with the whole amount of the debt and a very large arrear of interest.]

We believe that after paying the bondholders, the undertaking would be a valuable property. We believe that the enterprise is practicable both physically and financially. We are willing to expedite the appeal to the House of Lords as much as possible. Southgate, Q. C., and Cozens-Hardy, for the plaintiff :This is an exceptional case. Our affidavit shows that both the companies and also Nash are practically insolvent. The appeal is merely speculative; if it succeeds the defendants will get no real benefit from the money, which will be all wasted. Each bondholder, on receiving his money, can give an undertaking to repay it if the appeal succeeds, and the difficulty in recovering it would not be great.

If the application to stay proceedings is granted, we ask the Court that it may be upon condition of the defendants giving us a material guarantee for the amount of the costs in the Court below by paying into Court £5000, or some other sufficient

*

sum; for it would be useless to take out execution [* 457] against either of the companies or against Nash.

v. Elford, 4 Ch. D. 352.

Morgan

Is there any precedent for the Court making

[COTTON, L. J. any such condition ?]

In the Citizens' Bank of Louisiana v. Bank of New Orleans, L. R., 6 H. L. 352, not reported on this point, the appellants asked that the payment of a sum of £5000, which by the decree of the MASTER OF THE ROLLS had been ordered to be paid to the respondents, might be stayed; and the Court ordered that the money should be paid into Court to abide the result of the appeal to the House of Lords, " upon the appellants giving security to be answerable as this Court shall direct for any loss that may be occasioned to the respondents by reason of the order. " The principle of that case applies to the present. But if there were no precedent the Court has power to make one in a case like the present, as was said by Lord Justice JAMES, in Corporation of Hastings v. Ivall, L. R., 9 Ch. 758.

Macnaghten and Snagge for the trustees.

Benjamin, in reply.

COTTON, L. J. This is an application to stay the execution of an order for payment of a very large sum of money to the bond

No. 6. Wilson v. Church, 12 Ch. D. 457, 458.

holders who are interested in it, on the ground that there is an appeal presented by the defendants, the unsuccessful parties, to the House of Lords. There is also a direction in the order for payment of the costs out of the fund, and also a right given to the plaintiff to get his costs from the defendants. Now, as regards the direction for the payment of the costs out of the fund, and the direction for payment of the costs by the defendants, it would be contrary to the usual practice to stay any direction for the payment of costs, and therefore, in my opinion, there ought to be no interference whatever with the direction for payment of the costs out of the fund, and no interference with

the right of the plaintiff to get such costs as he can from [** 458] the defendants by putting the order into execution. *Of course the plaintiff's solicitors will give, as is usual, an undertaking to refund the costs if the House of Lords should reverse the decree which has been made by this Court.

But then there comes the question whether or no that part of the order which directs payment to the bondholders should be stayed. I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory; and, acting on that principle, when there was an appeal to this Court from the judgment of Mr. Justice FRY dismissing the plaintiff's action altogether, and it was urged therefore that this Court had no jurisdiction to stay the execution of the order, we were of opinion that we ought to stay the execution of a judgment in another action made by Mr. Justice FRY, ordering the fund to be dealt with, that is to say, by granting an injunction against the trustees to restrain them from parting with any portion of the fund in their hands till the appeal was disposed of. Wilson v. Church, 11 Ch. D. 576. That possibly was rather novel, but it was right, in my opinion, to make that order to prevent the appeal, if successful, from being nugatory. Acting on the same principle, I am of opinion that we ought to take care that if the House of Lords should reverse our decision (and we must recognise that it may be reversed), the appeal ought not to be rendered. nugatory. I am of opinion that we ought not to allow this fund to be parted with by the trustees, for this reason: it is to be distributed among a great number of persons, and it is obvious that there would be very great difficulty in getting back the