THE LAW JOURNAL REPORTS FOR THE YEAR 1905 IN THE King's Bench Division OF THE HIGH COURT OF JUSTICE, INCLUDING The Court for Crown Cases Reserved, REPORTED BY F. B. FITZROY COWPER, JAMES EDWARD ALDOUS, IN The House of Lords, REPORTED BY JAMES EYRE THOMPSON, BARRISTER-At-Law, AND IN The Court of Appeal, REPORTED BY W. E. GORDON, G. HUMPHREYS, JOSEPH SMITH; CONTEMPORARY WITH LAW REP. [1905] 1 & 2 K.B.; AND LAW REP. [1905] A.C. PUBLISHED FOR THE PROPRIETORS AT THE OFFICE OF THE LAW JOURNAL REPORTS, 119 CHANCERY LANE, LONDON. 1905. וי [IN THE COURT OF APPEAL.] STIRLING, L.J. MATHEW, L.J. 1904. Oct. 26, 27. KISTLER V. TETTMAR. Attachment-Order of Court to Attend for Examination-Disobedience to Order -Personal Service of Order-Evasion of Service. Personal service of an order of the Court is not a condition precedent to the making of an order for the issue of a writ of attachment against a person who has disobeyed the order of the Court, where such person has knowledge that the order has been made and is evading service thereof. in obedience to an order of the Court, but that the writ should lie in the office for seven days from the date of the order, and if by that time 251. was paid to the plaintiff's solicitors, then until the seventh day of the next sittings, otherwise the writ was to issue. The following statement of the circumstances in which the order in question was made is taken substantially from the judgment of Stirling, L.J. The defendant, a married woman, was sued in respect of a debt, but, having failed to appear to the writ, judgment by default was signed against her in June, 1904. The only property to which the defendant appeared to be entitled was a share in certain partnership assets. The plaintiff's solicitors, being aware of that fact, sought to obtain satisfaction of the judgment The rule laid down by COTTON, L.J., Hyde v. Hyde (57 L. J. P. 89; 13 P. D. 166) as to the practice in the case of a writ of sequestration applied to a writ of debt by making that share available for attachment for disobedience to an order of payment of the judgment debt. When the Court. an attempt was made to enforce the judgment by means of an application on behalf of the plaintiff for the appointment of a receiver, it appeared that, on June 4, 1904, the defendant had parted with her share and interest in the partnership assets by selling the same for 300l. On the July 15 an order was made on 166577 B KISTLER V. TETTMAR, App defendant to attend on July 23 for oral examination as to what debts were owing to her and as to whether she had any or what other means of satisfying the judg ment. On July 18 an attempt was made to serve on the defendant the order made upon July 15. The person charged with service of the order called at the house of the defendant at Eastbourne, where she was residing with her husband. He saw the husband, who stated that the defendant was too ill to be seen, and who declined to have anything to do with the order. Thereupon the person charged with service of the writ left it with the husband by placing it in his presence on the door-mat, together with 17. as conductmoney. The defendant having failed to attend for examination on July 23, a further appointment for July 26 was made by the Master, and notice of such appointment was, by order of the Master, given by letter to the defendant at her address. A letter was accordingly written in which the plaintiff's solicitors stated that the order for her examination had been duly indorsed by the Master with her nonattendance, and that they were in a position to apply for a writ of attachment, but that, as they did not wish to take those harsh measures against her, they had obtained another appointment for July 26, and that, if she wrote by return of post stating she would attend, the application to the Judge for her attachment would be held over. That letter came into the hands of the husband, who instructed a solicitor to attend the appointment on July 26. The solicitor's clerk accordingly attended the appointment, and having stated that the defendant was too ill to attend and be examined, the Master required an affidavit from a medical man to that effect, and gave a further appointment for August 2. On July 28 the solicitor who had been instructed by the husband wrote a letter to the plaintiff's solicitors to the effect that, by reason of the manner in which the order had been left at the defendant's house at Eastbourne, there had been no personal service on the defendant, and asking whether, as the defendant was ill, there would be any objection to her being examined at her house. The appointment on August 2 was not attended by the defendant, nor was any affidavit by a medical man as to the state of her health produced. On August 3 a summons was taken out by the plaintiff for leave to issue a writ of attachment against the defendant for disobedience to the order to attend for examination. The summons came before Phillimore, J.. on August 9, and at the hearing an affidavit by the above-mentioned solicitor was read, in which he stated that in his opinion the order for the defendant's examination had come to her knowledge, and that she had wilfully endeavoured to evade service thereof. Phillimore, J., made an order for the writ of attachment to issue, but directed that it lie in the office for seven days, and should not be executed if the defendant attended before the Master for examination before the Long Vacation. Thereupon a further appointment before the Master was fixed for August 12; but on that day an application was made to the Judge on behalf of the defendant, asking that the order for the issue of the writ of attachment might be varied, and affidavits were produced setting out the facts as to the defendant's state of health and the circumstances under which a copy of the original order for examination had been left at her house. Phillimore, J., having discharged the order for attachment which he had made in the first instance, then made the order now appealed from by the defendant. Frank Mellor, for the defendant.—The order to attend for examination, which was indorsed as required by Order XLI. rule 5, has never been personally served on the defendant. Personal service of the order upon which proceedings by way of attachment for disobedience to it are founded is absolutely necessary-Cunningham, In re [1886]. The words of rule 5 expressly provide that a copy of the order "shall be served upon the person required to obey the same." The language of Order XLIV. rule 2, under which an application for leave to issue a (1) 55 L. T. 766. 1 KISTLER V. TETTMAR, App. writ of attachment may be made, differs from that of Order XLI. rule 5. If personal service could not be effected, the proper course was for the plaintiff to obtain an order for substituted serviceEvans v. Noton [1892].2 With regard to the question whether the defendant was aware of the existence of the order to attend for examination, there is the statement by the solicitor of his belief that she knew of its existence; but that is not sufficient, for there must be personal service-Holt, In re [1879].3 A. Llewelyn Davies, for the plaintiff. The rule as to when personal service of an order which is sought to be enforced is necessary is correctly laid down in the Annual Practice, 1903, at p. 611, in the note to Order XLIV. rule 2. But personal service is not necessary where it is shewn that the order has come to the knowledge of the person against whom it has been made, and that he is keeping out of the way in order to avoid personal service - Allen v. Allen [1885]. The evidence here points to the fact that the order had come to the knowledge of the defendant, and that she was wilfully evading personal service thereof. Frank Mellor, in reply, referred to Mander v. Falcke [1891].5 STIRLING, L.J., after stating the facts as set out above, continued: When the matter came before Mr. Justice Phillimore on the last occasion, he was not satisfied with the affidavits which were produced on behalf of the defendant, and be accordingly made the order for attachment which is now appealed against. I understand that the ground upon which the learned Judge proceeded was that it appeared to him that the defendant knew of the order and was evading service, and consequently that the objection that there had been no personal service ought not, in the circumstances, to avail the defendant. The question is whether the learned Judge was right in so holding. Having given the matter my best attention, I think he was quite right in law. The latest case on the subject of which I am aware is that of Hyde v. Hyde [1888] in the Court of Appeal. That was a case in which it was sought to obtain a writ of sequestration against a married woman's property upon the ground that she had not obeyed an order of the Court to deliver up her children to her husband; and the same objection was there taken as is taken in this case, that there had been no personal service upon her of the order. The law was thus stated by Lord Justice Cotton : "It is true that as a general rule no order will be made for sequestration or attachment unless it can be shewn that there has been personal service of the order disobeyed, but there are exceptions to that rule. If it were proved, for instance, that the person was actually in Court at the time the order was made, service would be unnecessary in order to obtain process for contempt, and personal service is also dispensed with if it is shewn that the reason why there has been no personal service is that the person to be served has evaded service." That, no doubt, was a case of sequestration; but the rule, which in my opinion was accurately there laid down, applies equally well to the case of attachment. The general rule was that a person could not obtain a writ of sequestration unless he was also in a position to obtain a writ of attachment. I The only question, therefore, remaining for our consideration is one of factnamely, whether the Judge was right in the conclusion at which he arrived, that the defendant was evading service. think he was right. It may be that the person who had to effect service was acting wrongly in leaving the copy of the order, as he did, with the defendant's husband. A better course might have been to apply for an order for substituted service under Order LXVII. rule 6. But, as Lord Justice Cotton pointed out, the question is whether this case has been brought within the exception to the rule as to evasion of service. [His Lordship then dealt with the evidence, and arrived at the conclusion that the defendant was (6) 57 L. J. P. 89, 92; 13 P. D. 166, 171. |