1. The applicant must pay the costs of this application. He has come for an indulgence, and as he asks for an indulgence he ought to pay the costs of obtaining it.
2. That, in my view, is the principle which ought to apply generally to applications of this class, and that view is supported by the practice in the courts of England. I think that should be the general rule; I do not say it is an inflexible rule. Any way under the circumstances of this case the applicant must pay the costs of the application.
3. I agree in the order made as to costs, having regard to the special circumstances of this case, which are that the decree-holder was, in the first instance, unnecessarily made to appear before the Judge on the Original Side upon this application for stay of execution. That is a point upon which, speaking for myself, I must say that the judgment-debtor has not been able to satisfy me that he was right. But, as a matter of general principle, I am of opinion that the costs of an application like this ought to abide the ultimate result. I do not think that an application like this is an application for an indulgence; when the law allows an appeal, and furthermore when it allows an appellant, upon proper cause being shown, to ask for and obtain an order for stay of execution, it cannot be said that he asks for what is merely an indulgence. And looking at the reason of the thing, it would seem to be something more than an indulgence, being in fact what is necessary to enable the appellant to secure the full benefit of his success in the appeal. For when the law allows an appeal, if the appeal succeeds, and if, in the meantime, the party successful in the Court of First Instance is able to enforce the decree of the first Court by the sale of any immoveable property of his judgment-debtor, the success of the appeal may not secure to the appellant all that he would be entitled to, as the reversal of a decree cannot affect the sale of any immoveable property held in execution thereof while it was in force.
4. That being so, I think that the applicant ought not to be made unconditionally liable for the costs, but that his liability should depend upon the result of the appeal.
5. There might be circumstances under which the costs of opposing an application like this should be made payable by the applicant independently of the result of the appeal. Thus, where the opposition has reference to the sufficiency of the security offered, and the security is found to be insufficient, so far as the costs may relate to the opposition to that extent, the applicant may justly be deemed liable for those costs independently of the result of the appeal; but he ought not to be made unconditionally liable for costs generally.
6. I agree as to the incidence of the costs, and I come to that conclusion for the reasons stated by the Chief Justice. Section 220 of the Code of Civil Procedure no doubt says: 'If the Court directs that the costs of any application or suit shall not follow the event, the Court shall state its reasons in writing.'
7. Assuming that the application has succeeded, still I think that there is ample reason in this case for requiring the applicant to pay the costs, because he is asking for an indulgence which will have the effect of interfering for the present with the enforcement by the respondent of his decree, and he who seeks such an indulgence should in the absence of special circumstances pay for it.
8. On these grounds I think the order proposed is right.