Action to recover land. Service out of jurisdiction. mind resides, or under whose care he is, shall, unless the Court or a judge otherwise orders, be deemed good service on him (1). Service of a writ of summons in an action to recover land may, in case of vacant possession, when it cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwelling-house or other conspicuous part of the property (2). The person serving a writ of summons must, within three days at most after such service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non-appearance, to proceed by default; and every affidavit of service of such writ must mention the day on which such indorsement was made. This rule applies to substituted as well as other service (3). A complete revolution with regard to the subject of service out of the jurisdiction has been introduced by the Rules of the Supreme Court, 1883, O. XI. Under the former practice the Court had a discretion as to allowing service out of the jurisdiction. The present rule, as was stated by Sir George Jessel in a leading case is, however, intended to supersede the old practice and to be exhaustive, and to form a complete code upon the subject of service out of the jurisdiction. Service out of the jurisdiction of the writ or notice of the writ may be allowed by the Court or a judge in the seven following cases, viz., whenever (a.) The whole subject-matter of the action is land situate within the jurisdiction (with or without rents or profits); or (b.) Any act, deed, will, contract, obligation, or liability affecting land or hereditaments situate within the jurisdiction, is sought to be construed, rectified, set aside, or enforced in the action; or (c.) Any relief is sought against any person domiciled or ordinarily resident within the jurisdiction; or (1) R. S. C., 1883, Order Ix. r. 5. As to service on partners, see ante, p. 706; and as to service on corporations, &c., see Order IX. r. 8, the general principle of which is that the service must be effected on some chief officer of the defendant body; and see also Newby v. Von Oppen, L. R. 7 Q. B. 293 Lhoneux v. Hong Kong Banking Corporation, 33 Ch. D. 446, where it was held that service on the head manager of the London agency of the bank was good service. (2) R. S. C., 1883, Order Ix. r. 9. See as to service in Admiralty actions, post, p. 1050. (3) R. S. C., 1883, Order Ix. r. 15. diction. (d.) The action is for the administration of the personal Service out of jurisestate of any deceased person, who at the time of his death was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of England; or (e.) The action is founded on any breach or alleged breach within the jurisdiction of any contract wherever made, which, according to the terms thereof, ought to be performed within the jurisdiction, unless the defendant is domiciled or ordinarily resident in Scotland or Ireland; or (f.) Any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or (9.) Any person out of the jurisdiction is a necessary or some other person duly served within the jurisdic- Service out of the jurisdiction, said one of the judges of the Court of Appeal in a leading case upon the subject, "is an interference with the ordinary course of the law, for generally Courts exercise jurisdiction only over persons who are within. the territorial limits of their jurisdiction. If an Act of Parliament gives them jurisdiction over British subjects wherever they may be, such jurisdiction is valid, but apart from statute a Court has no power to exercise jurisdiction over any one beyond its limits" (1). () Re Eager, Eager v. Johnstone, 22 Ch. D. 86; In re Busfield, Whaley v. Busfield, 32 Ch. Div. 123; Marshall v. Marshall, 38 Ch. D. 330; Re Burland's Trade-mark, 41 Ch. D. 542; Kinahan v. Kinahan, 45 Ch. D. 78; and as to third-party notice: Dubout & Co. v. Macpherson, 23 Q. B. D. 340; and see Brett's Leading Cases in Equity, p. 304, et seq. The following documents may be Badham v. Nixon, W. N. 1880, p. 12. The following documents cannot An originating summons: In re A summons for taxation of costs: Counter-claims: In re Luckie, up of a VOL. II. Service out of jurisdiction. Where leave is asked from the Court to serve a writ in Scotland or Ireland, if it appears to the Court that there may be a concurrent remedy in Scotland or Ireland (as the case may be) the Court is to have regard to the comparative cost and convenience of proceeding in England, or in the place of residence of the defendant, or person sought to be served, and particularly in cases of small demands to the powers and jurisdiction, under the statutes establishing or regulating them, of the Sheriffs' Courts, or Small Debts Courts in Scotland, and of the Civil Bill Courts in Ireland, respectively (1). The plaintiff must shew to the satisfaction of the Court that he has a probable cause of action, and the Court in exercising the discretion which is given it by the rule will consider the facts appearing on the affidavits so far as may be necessary (2). Every application for leave to serve a writ or notice on a defendant out of the jurisdiction must be supported by affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a British subject or not, and the grounds upon which the application is made; and no such leave will be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this order. The order giving leave to effect the service or give the notice must limit a time within which the defendant is to enter an appearance. The time limited depends on the place or country where or within which the writ is to be served or the notice given. When the defendant is neither a British subject, nor in British dominions, notice of the writ, which is to be given in the manner in which writs of summons are served, and not the writ itself, is to be served upon him (3). The practice with regard to service out of the jurisdiction. has been judicially stated as follows:: The applications for leave to issue and for leave to serve are made in Chambers, either separately or simultaneously. African Steamship Co., 32 Ch. Div. 348. (1) See Kinahan v. Kinahan, 45 Ch. D. 78. (2) Société Générale de Paris v. Dreyfus, 29 Ch. D. 239; 37 Ch. D. 215; and see also Lenders v. Anderson, 12 Q. B. D. 50; Agnew v. Usher, 14 Q. B. D. 78; Speller & Co. v. When Bristol Steam Navigation Co., 13 Q. B. D. 96; and see as to the varions points which the affidavit must state with the utmost clearness: Annual Practice, p. 232. (3) R. S. C., 1883, Order XI. rr. 5, 6,7; and see Hewitson v. Fabre, 21 Q. B. D. 6. tion. they are made separately, a copy of the writ is, in the first Service out of jurisdicinstance, brought to the chief clerk of the judge, with whose name it is to be marked, and a verbal statement is made to him of the nature of the action, whereupon, unless the case is one which requires to be brought under the personal consideration of the judge, a course which is adopted in all but very plain cases, the chief clerk indorses on the copy of the writ the leave to issue it, and then the subsequent order, giving leave to serve the writ thus issued, is made upon affidavit intituled in the action. If the applications are made simultaneously the application for leave to serve is supported by affidavit intituled in the matter of the intended action (1). (') Per Hall, V.C., in Stigand v. Stigand, 19 Ch. Div. 460. Renewal of writ Appear ance. CHAPTER IV. WRIT OF SUMMONS. A writ of summons remains in force for twelve months from the day of its date. As difficulties may arise in serving a writ, the rules provide that if any defendant named in the writ has not been served with it the plaintiff may renew the writ for six months longer by leave of the Court or a judge, which must be obtained within the twelve months (1). It has been decided that the Court has no power to extend the time for renewing a writ of summons where the claim would, in the absence of such renewal, be barred by the Statute of Limitations (2). The rules also provide that the plaintiff may, at any time during the twelve months which the writ has to run, issue one or more concurrent writ or writs, which, however, only remain in force for the same time as the original writ (3). We have next to consider appearance, which may be described as the process by which the defendant submits to the jurisdiction of the Court. On this subject the rules provide that, except in the cases otherwise provided for, a defendant must enter his appearance in London at the central office (4). If any defendant to a writ issued in a district registry resides or carries on business within the district, he must appear in the district registry (5). If any defendant neither resides nor carries on business in the district, he may appear either in the district registry or at the central office (6). If a sole defendant appears, or all the defendants appear in the district registry, or if all the defendants who appear appear in the district registry and the others make default (1) Order vIII. r. 1; see as to writ (2) Doyle v. Kaufman, 3 Q. B. D. 7. page v. Tonge, 17 Q. B. D. 644. (4) R. S. Č., 1883, Order XII. rr. 1, 2. (5) R. S. C., 1883, Order XII. r. 4. (") R. S. C., 1883, Order XII. r. 5. |