money parted with if the House of Lords should be of opinion that it ought not to be divided amongst the bondholders. They are not actual parties to the suit, they are very numerous, and they are persons whom it would be difficult to reach for the purpose of getting back the fund. * If there had been any case made by the plaintiff that this appeal was not bona fide, that it was for some indirect purpose and not for the purpose of trying whether the judgment of this Court was right, the case would have stood in a different position, but there is no affidavit or tangible fact upon which, in my opinion, we can rely for the purpose of arriving at the conclusion that such is the fact. I deal with it as being [* 459] presented in the right of the defendants, and boná fide presented for the purpose of trying this question whether the judgment of this Court is or is not right. But then, of course, in staying the payment out of this money, we must put the appellants on terms that they shall have the question, so far as in them lies, decided at the earliest possible opportunity by the House of Lords, and they must pay the costs of this application. BRETT, L. J. This is an application to the discretion of the Court, but I think that Mr. Benjamin has laid down the proper rule of conduct for the exercise of the judicial discretion, that where the right of appeal exists, and the question is whether the fund shall be paid out of Court, the Court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful, from being nugatory. That being the general rule, the next question is whether, if this fund were paid out, the appeal, if successful, would be nugatory. Now it seems to me that, looking at this matter in the view of men of business, one cannot help seeing that if this fund is paid out it is impossible to say to whom it will be paid. It is quite true that the payments out will be to persons many of whom will never be able to be found; it is very possible, and most likely, that several of them will be abroad; it is most likely that several of them will be in America; and the practical result of paying this money out to the different bondholders, or to the persons who would be holding the bonds at the time, would be that the fund never could be got back again if the appeal were successful. Therefore, if this case is to be dealt with according to the general rule, it seems to me that the Court ought to stay the payment out * of this fund. That rule must be acted upon unless this is an exceptional case. It is suggested this is an exceptional case, because the appellants are subject to a good deal of suspicion and open to a good deal of observation; but, whatever may be the ground of suspicion, or however right the observations may be, I cannot think that we ought on that ground to prevent them from having the usual protection in case their appeal is [* 460] successful. With regard to the question of costs, even if there had not been the order, which it seems exists, that these costs should be paid out of the fund, I am of opinion that we ought not to deal with the costs. The plaintiff is a litigant and must stand by the fate of all other litigants. He has an execution for costs. He says that he cannot make that execution effectual, but that would be so whether this application were granted or not. But, however, he seems to me to be amply protected, at all events on the present occasion, for his solicitor can get the payment of the money out of the present investment, and he may expend it if he thinks proper, and upon an unsuccessful appeal he will have other funds to pay it back, if not, he will amuse himself by putting the money from one investment into another, -the fate of all other plaintiffs and respondents upon appeal. I do not see anything in this case to alter the ordinary rule of conduct; therefore I think this application must be acceded to. JAMES, L. J. I am unable to agree with the conclusions at which the majority of the Court has arrived. I think this is a very exceptional case, and that it should be dealt with with reference to those exceptional circumstances. It is not a question of who is entitled to the money. If it were a question as to whether the plaintiff or the defendants were entitled to the money I should fully concur with what has been said by my colleagues, but, as I understand the case, the money was lent by the bondholders to the Bolivian Government for the purpose of being laid out upon a work, and the question is whether it is to be laid out upon that work when made, being a work for the benefit of the bondholders and the Bolivian Government; the only possible interest (which it appears to me is such a shadowy interest, I cannot pay the slightest attention to it) that the companies can have in the matter being the possible interest which the contractors may have in laying out the money in these works, and in the value of the works after they have been made. That No. 6. Wilson v. Church, 13 Ch. D. 460, 461. Notes. * interest appears to me, as a man of business, to be utterly idle and nonsensical. That is to say, A. has agreed to lend money to be laid out on property in which B. has an interest, but which when laid out will simply be a security for the [*461] man whose money is to be laid out. It appears to me that that does make an exceptional circumstance, and therefore, although it is not a matter of very great consequence, I cannot myself agree that this is a case which ought to be decided upon the general principle which is applicable to a case where the question is between two persons claiming a fund. ENGLISH NOTES. In Polini v. Gray, Sturla v. Freccia (C. A. 23 July, 1879), 12 Ch. D. 41, 49 L. J. Ch. 41, -a suit in which inquiries were made as to the next of kin of an intestate an injunction which had been granted against dealing with certain funds was continued notwithstanding a decision of the Court in favour of the persons holding the funds, pending an appeal to the House of Lords; the reason being that, if the appellant ultimately succeeded in the House of Lords, her success would be useless unless the fund was protected in the meantime. On a In Bradford v. Young, In re Falconer's trusts (C. A. 1884), 28 Ch. D. 18, 54 L. J. Ch. 368, the decision of the Court of Appeal was substantially to the same effect as in the principal case. The question related to the transfer out of Court of a sum of about £10,000 stock, which Mr. Justice PEARSON upon the hearing of a certain action on further consideration had ordered to be made to the plaintiff. motion by other parties that the payment out should be suspended pending an appeal, Mr. Justice PEARSON suspended the payment over the long vacation in order that the question might be determined by the Court of Appeal. While making this direction, he observed, referring to Walburn v. Ingilby (1832), 1 My. & K. 79, and Huguenin v. Baseley (1808), 15 Ves. 180, that "it appears to be by no means the settled rule of the Court that, without any special ground being shown, a fund which has been ordered to be paid out should be retained in Court simply because there is an appeal from the order." On the application being made after the long vacation to the Court of Appeal, it appeared by affidavit that the plaintiff had been abroad for two years, and that the applicant could not find his address. The Court gave the counsel for the plaintiff the alternative of (a) giving security for refunding in case the appeal should be successful, or, (b) of having the payment out stayed until the hearing of the appeal, No. 7. In re St. Nazaire Co., 12 Ch. D. 88, 93. — Rule. upon the applicant giving security to pay interest at £4 per cent on the present market price of the stock, and to make good to the plaintiff the difference, if any, between the highest market price of the stock at any time between the day of hearing the application and the day of hearing the appeal, and the market price on the latter day. The counsel for the plaintiff having elected the latter alternative, the case stood over for the applicant to give security, which he ultimately declined to do. SECTION III.-Appeal by way of rehearing. No. 7. IN RE ST. NAZAIRE CO. RULE. UNDER the system of the English Judicature Acts, a judge of the High Court has no power, after an order of the Court has been drawn up, to rehear the case; the power of rehearing being part of the appellate jurisdiction which is transferred by the Acts to the Court of Appeal. In re St. Nazaire Co. 12 Ch. D. 88-101 (s. c. 41 L. T. 110, 27 W. R. 854). The question which was argued before the Court of Appeal in this case was whether the VICE CHANCELLOR had jurisdiction to entertain a certain petition, the nature of which will sufficiently appear from the judgments. In the argument for the petitioners, Miller's Case, 3 Ch. D. 661, and Plumstead Water Company v. Davis, 28 Beav. 545, were cited. [JESSEL, M. R. In Miller's Case no order had been drawn up. A Judge can always reconsider his decision until the order has been drawn up. What you have to make out is, that the old practice in Chancery of a Judge rehearing his own decisions still exists under the Judicature Acts.] [* 93] The judgments pronounced were as follows: *JESSEL, M. R. [After some preliminary observations.] The first question to be considered is whether this is a petition of rehearing, and I cannot imagine on what grounds it can be otherwise described. Upon the application of the liquidator of the European Bank to be admitted a creditor against the St. Nazaire Company for a sum of £22,300 7s. 2d., alleged to have been advanced and paid by the bank to the company, with interest, the VICE CHANCELLOR, on the 27th of January, 1877, made an order "that the claim of the liquidators of the said bank to be admitted as creditors against the said St. Nazaire Company, Limited, be allowed for such an amount as shall be certified to be due to the said European Bank, Limited, in respect of their said claim in the winding-up of the said company.” The meaning of that was that in principle the claim was allowed, and the amount was left to be ascertained in Chambers. It was equivalent in effect to a declaration that the claim was well founded, with a reference to Chambers to ascertain the amount only, but the order having been made upon summons the term "declare" is not employed. It is often so convenient to make a declaration, that I have * constantly made decla- [* 94] rations both on petition and on summons; but there used to be a notion in the Court of Chancery that the word "declaration" could not be used when the order was made on interlocutory application, and that accounts for the form of the order. That order was appealed from, and on the 27th of April, 1877, the appeal was dismissed with costs, so that the appeal Court decided that the claim was well founded, but that the amount due was to be ascertained by the Judge in Chambers. The petition is presented by certain contributories of the St. Nazaire Company; not pursuant to leave, for the leave given included the liquidator, but the petition was presented by contributories of the St. Nazaire Company only, without the liquidator. Now, first of all, we must see for what the petition asks. When we look at the body of the petition we find that in the 40th paragraph it says that the VICE CHANCELLOR in making his order of the 27th of January, 1877, was misled by the form of the minute of the Chief Clerk, which was treated by both parties as accurate when it was inaccurate; so that as regards the VICE CHANCELLOR there is a complaint that in making the order he was misled. Then in the 41st paragraph the order of the Court of Appeal is attacked, not on the same ground as the decision of the VICE CHANCELLOR, but in this way: "The liquidator of the |