the appellant with the said order; and at the same time, as also again the same day, demanded the costs so as aforesaid awarded, which the said appellant, in contempt of the said order, refused to pay the petitioner; and therefore praying that such order might be made in the premises for the petitioner's relief as, to the great wisdom of their Lordships, should be thought fit. And the petitioner being called in, and attesting upon oath at the bar the service of the said order and refusal of the payment of the said costs; it was ordered, that the Gentleman-usher of the black-rod do forth with attach the body of the said John Carey for his contempt in disobeying the said order, and keep him in safe custody until further order of the House.

1 July.-Petition of John Carey, in custody of the Gentleman-usher of the black-rod, setting forth that he had found means to raise money to satisfy the respondent's said costs, and had also paid his fees due to the officers of the House; begging pardon for his offence, and praying to be discharged. Ordered to lie on the table; no proof being made of the allegation of the said petition as to the payment of the said costs.

3 July. The House being moved to receive proof of the said allegation, Mr. Incledon, at the bar, attested upon oath the acknowledgment made of the receipt of the said costs by the person entitled thereunto.-Ordered, that the said John Carey be discharged out of custody; he having likewise paid his fees to the officers of the House.

But a more effectual course is to remit the matter to the court below, with the necessary directions. Thus,

Jenkins v. Blake, 1 June, 1675.—Decree affirmed, and appeal dismissed; and further ordered, that the appellant pay unto the respondent 201. for costs, by reason of the said appeal unreasonably brought into this House.

4 February 1677.—It appearing by the respondent's petition that the appellant was duly served with the judgment of the House, but refuseth to pay the 201., and stands in contempt of this House for non-payment thereof. It is thereupon ordered, that process shall forthwith be issued out of the Court of Chancery for levying the said costs, so assessed by this House, according to the rules of the Court of Chancery in the like case of levying costs given by that court usually practised. And this shall be a sufficient warrant on that behalf.

Bath v. Conly, 6 June, 1720.-A petition on behalf of the respondent was read, praying that, in case the appellant who resided in Ireland should neglect or refuse to pay the sum of 100%. awarded by the House as costs, after hearing the appeal, upon service of the order for that purpose, and upon proof made thereof in the Court of Chancery in Ireland, the said 1007. might be added to the costs before taxed in the cause; and that the estate comprised in and charged with certain securities might

stand charged therewith, together with the other money due for principal, interest, and costs. A committee was appointed, who reported that they had inspected several precedents, namely, 4 February, 1677, Jenkins v. Blake; 20 February, 1706, Deye v. Stevenson; and 17 and 22 March, 1710, Lord Kinnaird v. Ruddock; and having considered the same, were of opinion that the 100%. might be, by the said Court of Chancery, ordered to be levied by the same rules and methods as the costs given by the said court in the said cause are to be levied, in case the said appellant shall refuse or neglect to pay the same, being first duly served with the order of the House for that purpose. Report agreed to, with this addition, namely, that the service of the order on the appellant's clerk in court, and leaving a copy thereof at the place of the said appellant's last abode, be deemed good service in order thereunto.

In the following case, a mother, in the character of guardian to her infant children, having brought a groundless appeal to the Lords, was condemned to pay the costs out of her own pocket. This order she resisted or evaded for some time; and the consequence was, that the Court of Chancery in Ireland was, ultimately, directed to issue an attachment against her; and this, notwithstanding a plea of coverture set up by her; their Lordships holding that as she had appealed as guardian to her children, without then representing that she was a femme covert, execution ought to issue against her regardless of her subsequent pretence of coverture.

Blake v. Blake, 5 August, 1721.-On the appeal of Sibella and Jane Blake, infants, by Elizabeth Blake their mother and guardian, complaining of a decree of the Court of Chancery in Ireland, and praying that the same might be reversed, and that the plaintiff's bill below might be dismissed with costs; it was ordered and adjudged that the decree be affirmed; and it was further ordered that Elizabeth Blake, the appellants' mother and guardian, who had brought this groundless appeal in their name, should pay to the respondent, out of her own pocket, the sum of 50%. for his costs in respect of the said appeal.

9 August. The respondent presented a petition setting forth that he had served the said order on the said Elizabeth Blake, and had demanded the said costs from her, which however she did not pay; and in regard the petitioner had been detained in England upwards of six months to

T

prosecute the said appeal at great expense, praying such relief, in relation to the said costs, as to the House should seem meet.

A person appeared at the bar who gave evidence upon oath in support of the allegations of this petition; whereupon an order was made, commanding the Gentleman Usher of the Black Rod, his deputy or deputies, to attach forthwith the body of the said Elizabeth Blake, for her contempt in not paying the said costs, and to keep her in safe custody until she should have paid the same.

3 March, 1723.-Respondent petitioned the House that the Lord Chancellor of Ireland might be directed to compel Elizabeth Blake to pay the costs in question. This petition was referred to a committee.

11 March, 1723.-Elizabeth Blake petitioned the House, setting forth that she was a married woman at the time of the making of the said order, and that she being unable to comply with the same, the respondent had applied to the Court of Chancery in Ireland, but on such application the Lord Chancellor was pleased to declare that a femme covert could not be obliged to pay money; and therefore praying that out of regard to the petitioner's circumstances, the costs might be ordered to be paid out of the fortune of the infants. This petition was referred to the same committee, who on the 12th March reported, that having considered both petitions, and heard the agents on both sides; and having also perused certain proceedings in the Court of Chancery in Ireland, subsequent to the said order and judgment for payment of the costs; they were of opinion, the said Elizabeth Blake having appealed to the House as guardian to her own children without taking notice of her being a femme covert, that the said Court of Chancery should be directed forthwith to proceed to grant an attachment against her for the payment of the said 50%. without any regard to her pretence of coverture.—Ordered accordingly.

In the following case, the appellant having failed to pay a sum of costs awarded by the House against him, their Lordships refused to hear his appeal.

Knox v. Knox, 10 May, 1824.-On an order made on a former day that the appellant should pay to the respondent 1487. costs of the second appeal, the appellant petitioned for a discharge of the said order, and the respondent that the said order might be enforced. The agents on both sides were called in and informed that the House did order the said costs to be paid, or satisfactory security to be given for the same, otherwise the House would not permit the hearing of the cause.

PRACTICE

ON

ENGLISH AND IRISH APPEALS.

CHAPTER THE TWENTY-SIXTH.

Execution of Judgment.

Not necessary to make Affirmance a rule of Court below, 275;-unless where there has been a stay of Proceedings, 276.—Secus where anything is to be done, ib.-Bertie v. Lord Falkland, 277.-On Abatement after Judgment, Suit must be revived below, 278.-Morley v. Elwes, ib.

As the reception of the appeal in the House of Lords has not the effect of suspending the proceedings of the court below, a judgment of simple affirmance merely establishes matters as they are. There is nothing new to be done; and, consequently, I apprehend, no occasion for making the judgment of the House an order of the court below.

It is, however, laid down in Harrison's Chancery Practice (a), that "whatever order is made in Parliament on the appeal, ought to be made an order of the Court of Chancery;" citing for this proposition, an authority (”), which certainly does not warrant it. The case referred to by Mr. Harrison was a case before Lord Hardwicke, in which there had been an appeal to the Lords, and judgment given as follows:

(*) p. 351.

() Attorney-General v. Scott, 1 Ves., sen. 419.

Wilson v. Wilbraham, 13 February, 1750.-Ordered and adjudged by consent, that the said petition and appeal be, and is hereby, dismissed this House; and that the decree therein complained of be, and the same is hereby affirmed.

It was moved to make this judgment of the House an order of the Court of Chancery. Lord Hardwicke said,

It was necessary to do so where the Lords varied or reversed a decree, because it was to be carried into execution in the Court of Chancery; but he never knew it so drawn up when the decree was affirmed by consent; and desired the registrar to see if he could find a precedent of that kind, and if so, to draw it up in that manner.

Supposing the House to have issued a special order, suspending all proceedings in the court below, till the determination of the appeal; it might, in such a case, be proper and necessary to move that the judgment of affirmance should be made an order of the court below; because the judgment of affirmance would put an end to the suspension of proceedings.

If, in pursuance of a judgment of the House, anything is to be done under the direction of the court below, the judgment of the House must be made an order of the court below; for, until the judgment is so made an order of the court below, it cannot be acted upon; nor can process be enforced. The order of the court below orders, that the judgment of the House be made an order of the court below; and if by the judgment of the House costs are to be taxed, inquiries to be made, or accounts to be taken, the order directs the same accordingly. As the judgment of the House of Lords is final, and cannot be appealed against, it appears the registrar will draw up the order without a consent brief, or requiring an affidavit of service (c).

(c) Smith's Chancery, 47. For orders for this purpose, see Hand's Prac. 124; Equity Draftsman, 625.