Heynes, 21 Q. B. D. 330, C. A. Thus, in an action against London agents of foreign principals for breach of warranty of authority, the foreign principals are proper parties: Ibid.; and so the English manufacturers of cycles which infringed a patent, and alleged to be supplied by them to an agent in Ireland for sale were properly joined as co-Defts to an action brought in Ireland: Joynt v. McCrum (1899), 1 I. R. 217. In order to bring a case within the clause, the Plt must have an apparent cause of action against the person served within the jurisdiction, and must not merely have joined such person in order to be able to sue, within the jurisdiction, a person who is out of the jurisdiction: Witted v. Galbraith, (1893) 1 Q. B. 577, C. A.; and Plts cannot properly join as co-Defts with a person out of the jurisdiction persons who are trustees for the Plts, who might be joined as co-Plts, and against whom no relief is sought: Deutsche National Bank v. Paul, (1898) 1 Ch. 283; and the relief sought against the Deft out of the jurisdiction must be connected with that sought against the Deft within the jurisdiction. Thus the trustee of a will who was out of the jurisdiction could not be joined as co-Deft with the mortgagees of the interest of a bankrupt beneficiary under the will in property situate out of the jurisdiction: Collins v. North British and Mercantile Insurance Co., (1894) 3 Ch. 228; and for a case in which it was held upon the evidence that solrs in India, who had acted for trustees making an investment, were not proper parties to an action against the represve of the surviving trustee for breach of trust: see Plaskitt v. Eddis, 79 L. T. 136.

It must (semble) be shown that there is a substantial Deft within the jurisdiction: Yorkshire Tannery v. Eglinton Chemical Co., 54 L. J. Ch. 81; as the Court must see that British subjects are not unreasonably and maláâ fide sued in order to make a case against foreigners: Massey v. Heynes, sup.; and that the Deft within the jurisdiction against whom the relief is sought has previously to such application been duly served with the writ: Collins v. North British and Mercantile Insurance Co., (1894) 3 Ch. 228; following Yorkshire Tannery and Boot Manufactory v. Eglinton Chemical Co., 54 L. J. Ch. 81; 33 W. R. 162; notwithstanding observations thereon in Tassell v. Hallen, (1892) 1 Q. B. 321. Service under clause (g) may be allowed in an action of tort: Croft v. King, (1893) 1 Q. B. 419; but the jurisdiction is discretionary: Williams v. Cartwright, (1895) 1 Q. B. 142, C. A.

For a case in which order for service ex jur. was discharged on the ground that the Spanish Court was the proper tribunal, see Lopez v. Chavarri, W. N. (01) 115.

By O. XI, 2, if it appears that there may be a concurrent remedy in Scotland or Ireland, the Court or Judge is to have regard to the comparative cost and convenience of proceeding in England, or in the place of residence of the Deft or person sought to be served.

Comparative cost and convenience" has reference to the parties generally, and not merely to the person sought to be served: Williams v. Cartwright, (1895) 1 Q. B. 142, C. A. In an action of deceit against three jointly of whom one was resident in Scotland, service on him out of the jurisdiction was allowed under clause (g): Ibid.

Where an action is transferred from the county court to the High Court, the procedure is governed by the High Court Rules, and an order for service which would have been good in the county court may be open to objection by the defendant in the High Court: Wood v. Middleton, (1897) 1 Ch. 151. An administration action having been so transferred, the defendant, who had been served in Scotland and objected, was held entitled to have an opportunity of filing evidence as to the domicil of the testator, and as to the existence of an adequate concurrent jurisdiction in Scotland: Ibid.

Where an action was brought against Scotch trustees of a Scotch property, held upon the trusts of a Scotch settlement, for improperly withholding maintenance, leave was refused on grounds of convenience: Cresswell v. Parker, 11 Ch. D. 601, C. A.; and as to the principles on which the Court acts in considering the question of convenience, see Exp. McPhail, 12 Ch. D. 632. Leave to issue a writ and serve in Ireland was refused when the comparative cost and convenience were in favour of proceeding there: Tottenham v. Barry, 12 Ch. D. 797; and see Harvey v. Dougherty, 56 L. T. 322; Kinahan v. K., 45 Ch. D. 78, where the Judge in Court discharged an order, made in Chambers exp., for service ex jur.

By O. XI, 4, the application for leave to serve a Deft is to be supported

by affidavit or other evidence, stating that in the belief of the deponent the Plt has a good cause of action, and showing in what place or country the Deft "is, or probably may be found" (see Seagrove v. Parks, (1891) 1 Q. B. 551), and whether he is a British subject or not, and the grounds upon which the application is made; and no such leave shall be granted unless it shall be made sufficiently to appear to the Court or Judge that the case is a proper one for service out of the jurisdiction under this order.

It must be shown that there is a good cause of action within the order: Fowler v. Barstow, 20 Ch. D. 240, C. A.; Great Australian, &c. Co. v. Martin, 5 Ch. D. 1; and for service in Scotland or Ireland there must be evidence for enabling the Judge to exercise his discretion: Tottenham v. Barry, 12 Ch. D. 797.

The omission to make the affidavit is an irregularity which may be dealt with under O. LXX, 1: Dickson v. Law, (1895) 2 Ch. 62.

By O. XI, 5, any order giving leave to effect such service, or give such notice, shall limit a time (as to which v. sup. p. 7) after such service or notice within which the Deft is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served, or the notice given. By O. XI, 6, when the Deft is neither a British subject, nor in British dominions, notice of the writ, and not the writ itself, is to be served upon him. The requirement is imperative: see Fowler v. Barstow, 20 Ch. D. 240, 245, C. A. Therefore, where the writ, instead of notice of it, was served, the order for service and judgment in default of appearance grounded on it were set aside on the application of the Deft: Hewitson v. Fabre, 21 Q. B. D. 6. Whether, however, such an irregularity might not, under O. LXX, 2, be cured by appearance of Deft, quære: Ibid. (Wills, J.). The rule applies to foreign corps. as well as individuals: Scott v. Royal Wax, &c. Co., 1 Q. B. D. 404. For form of notice, see R. S. C., App. A., Part I., Form 9.

Where sole Deft in Palatine Court is resident out of the jurisdiction of that Court, leave to serve the writ upon him out of the jurisdiction will only be granted, if at all, under very special circumstances: Re Watmough, Sergenson v. Beloe, 24 Ch. D. 280, C. A.

Having regard to Chancery of Lancaster Rules, 1884, O. II, 4; O. XII, 1, 7, leave of the Palatine Court must be obtained for issue of writ out of jurisdiction before application to Court of Appeal, under 17 & 18 V. c. 82, s. 8, for leave to serve out of the jurisdiction of the Palatine and within that of the High Court: Walker v. Dodds, 37 Ch. D. 188, C. A.

On application to set aside service against one Deft, an order for transfer to the High Court was made, but the other Defts were held necessary parties to the application: Phipps v. Tod, C. A., 10 Nov. 1886.

The right of a Plt under 4 & 5 Anne, c. 16, to bring his action after the Deft's return from beyond the seas within the time limited by 21 Jac. 1, c. 16, is not taken away by O. XI: Musurus Bey v. Gadban, (1894) 1 Q. B. 533; (1894) 2 Q. B. 352, C. A.

Other Proceedings.

The Court cannot, under O. XI, 1, order service of an originating summons out of the jurisdiction: Re Busfield, 32 Ch. D. 123, C. A.; the rule applying in terms only to writ of summons, and service out of the jurisdiction not being a power inherent in the Court: Ibid.; Re Anglo-African Steamship Co., 32 Ch. D. 348, C. A.; Re La Compagnie Générale d'Eaux Minérales, (1891) 3 Ch. 451.

By O. LXVII, 5, where personal service of any writ, notice, pleading, order, summons, warrant, or other document, proceeding, or written communication, is required by the rules, or otherwise, the service shall be effected as nearly as may be in the manner prescribed for the personal service of a writ of summons.

This rule "deals merely with the mode of effecting personal service, and is only applicable where personal service can be effectually made, and was not intended to introduce, in the case of all documents requiring personal service, an extraordinary power of service out of the jurisdiction, which is by another rule given in terms confining it to a writ of summons:" Cotton, L. J., Re Busfield, Whaley v. B., 32 Ch. D. 131, C. A.

VOL. I.

C

Thus, leave will not be given to serve out of the jurisdiction an order for calls made in a winding-up: In re Anglo-African Steamship Co., 32 Ch. D. 348, C. A.; nor a summons for taxation of costs: Exp. Brandon, Re Bouron, 54 L. T. 128; 34 W. R. 352; nor for appointment of a receiver by way of equitable execution: Weldon v. Gounod, 15 Q. B. D. 622; nor a notice of motion to rectify the register of trade marks by striking out a mark registered in the name of a foreign co. : Re Compagnie Générale d'Eaux Minérales, &c., (1891) 3 Ch. 451; nor a petition for payment out of Court under the Trustee Relief Act: Re Jellard, 39 Ch. D. 424, C. A. (per North, J.); and see Re Cliff, Edwards v. Brown, (1895) 2 Ch. 21, C. A.; nor notice of an order made on originating summons: Re Cliff, Edwards v. Brown, (1895) 2 Ch. 21, C. A.; nor (semble) of any judgment or order under O. XVI, 40: see S. C.

But a distinction has been drawn between a notice to found proceedings to enforce payment, and one which merely gives information to persons as to the course of procedure, and is no infringement of the jurisdiction of the foreign Court: In re Nathan, Newman & Co., 35 Ch. D. 1, C. A., where service ex jur. of notice to settle list of contributories in winding-up, under Orders of 1862, r. 30, was held good; and so notice of motion to rectify the register of trade marks may be sent to a foreign co., with an intimation that proceedings which may affect its interests are pending: Re Compagnie Générale d'Eaux Minérales, &c., sup. ; and a person having the conduct of the proceedings on originating summons, may of his own motion give notice, by letter or otherwise, to a person resident out of the jurisdiction; and if, after notice, that person does not choose to come in, the Court, in a proper case, will act upon the order, and, where a fund in Court is in question, distribute it in his absence: In re Cliff, Edwards v. Brown, (1895) 2 Ch. 21, C. A.; and leave has been given to serve a notice of motion for an interlocutory injunction with a copy of the writ out of the jurisdiction upon some of the Defts who were foreign subjects, without prejudice to any question which might arise under the order: Overton v. Burn, 74 L. T. 776; Hersey v. Young, W. N. (94) 18.

In Colls v. Robins, 55 L. T. 479, Kay, J., gave liberty to serve a petition for payment out of Court upon parties out of the jurisdiction, observing that the exor being before the Court the petition was rather in the nature of a notice than of a process. In the case of a petition for revocation of a patent, ample notice having been given to the respondent who was out of the jurisdiction, North, J., made an order nisi that unless the respondent should, on or before a specified day, appear and show cause to the contrary (in which case, it was said, it would be open to him to dispute the jurisdiction), the petition should be tried with viva voce evidence, and set down in the list of witness actions: Re Drummond's Patent, 43 Ch. D. 80.

Leave to issue an interpleader summons for service out of the jurisdiction was granted, as the Court could bar the claim of the foreigner refusing to submit himself to the jurisdiction: Credits Gerundeuse, Lim. v. Van Weede, 12 Q. B. D. 171; City of Dublin Steam Packet Co. v. Cooper (1899), 2 I. R. 381 (see Re Busfield, sup.), the object of service being only to give notice of a proceeding affecting rights; see Re Busfield, sup. Re Bonelli's Electric Telegraph Co., 18 Eq. 655; Re General International Agency, 16 L. T. 725; and Slaney's Trusts, 10 Ch. 275, must, it seems, be referred to the same principle. Re Baron Liebig's Cocoa, &c. Co., 59 L. T. 315, is reported as giving leave for service out of the jurisdiction of a summons in a winding-up for payment of a fund out of Court, but the order on the record (1888, A. 729) only gives leave to give notice of such a summons. This case purports to follow Re Nathan, Newman & Co., 35 Ch. D. 1, C. A., but the order as drawn up in that case (1887, B. 149) does not bear out the report.

It has been held that a third party notice may be served out of the jurisdiction under O. XI, 1 (e), by virtue of the provision in O. XVI, 48, that a copy of such notice shall be served according to the rules relating to the service of writs of summons:" Dubout v. Macpherson, 23 Q. B. D. 340, citing Swansea Shipping Co. v. Duncan, 1 Q. B. D. 644, C. A.; but see Re Busfield, Whaley v. B., sup., as to the meaning of these words.

And see Dan. 288-294; D. C. F. 149-159.

AFFIDAVIT OF SERVICE.

The affidavit of service of the writ must state when, where, and how, and by whom service was effected: O. LXVII, 9. It must show the day on which the indorsement of service was made on the writ, and that such indorsement was made within three days at most after service: O. IX, 15; 0. XIII, 1.

The affidavit of service cannot be dispensed with, even though the process server by foreign law cannot make the affidavit required by O. XIII, 2: Ford v. Miescke, 16 Q. B. D. 57. In Hastings v. Hurley, 16 Ch. D. 734, the Court extended the time for indorsing a writ which had been served abroad, but required a fresh affidavit of service.

DISCHARGE OF ORDER FOR SERVICE.

By O. XII, 30, a Deft before appearing is to be at liberty, without obtaining an order to enter or entering a conditional appearance, to serve notice of motion to set aside the service, or to discharge the order authorizing such service.

Where a Deft who objected to service, instead of moving to discharge the order, appeared by counsel on a motion for injunction, filed affidavits, and argued the case on the merits, he was precluded from taking such objection: Boyle v. Sacker, 39 Ch. D. 249, C. A.; 0. LXX, 2.

An order for service out of jurisdiction, made upon untrue affidavits, will be discharged, as uberrima fides ought to be observed by the party applying for such service: Republic of Peru v. Dreyfus, 55 L. T. 802.

The application under r. 30 must be promptly made. After lapse of a year it was held too late to raise objection to an order, on the ground that the affidavit did not fairly state the case: Reynolds v. Coleman, 36 Ch. D. 453, C. A.

On moving to discharge, Deft is entitled to go into evidence to show that the case is not within O. XI, but should not go into merits unnecessarily : Fowler v. Barstow, 20 Ch. D. 240, C. A.

The omission of the indorsement prescribed by App. A., Form No. 5, on the writ served out of the jurisdiction is a mere irregularity which may be disregarded under O. LXX, 1: Dickson v. Law, (1895) 2 Ch. 62.

By answering interrogatories in a county court action Deft does not waive his right to object, on transfer of the action to the High Court, to the order for service on him out of the jurisdiction: Wood v. Middleton, (1897) 1 Ch. 151.

THIRD PARTY PROCEDURE.

When a Deft claims to be entitled to contribution or indemnity over against any person not a party to the action, he may by leave issue a notice to that effect, sealed as a writ of summons, stating the nature of the claim. A copy of the notice is to be filed, and the notice is to be served within the time limited for delivering his defence: O. XVI, 48. By O. XVI, 55, the procedure is made applicable between co-Defts. It is not applicable to proceedings by originating summons: Re Wilson, A. G. v. Woodall, 45 Ch. D. 266.

82.

Form of third party notice is given, R. S. C., App. B., No. 1; D. C. F.

The application for leave must be made promptly; in general within time for delivering defence, but, at latest, before pleadings closed: Birmingham and District Land Co. v. L. & N. W. Rail. Co., W. N. (87) 102; 56 L. T. 702; but application before defence delivered is premature: In re Gilson, G. v. G., (1894) 2 Ch. 92.

The application should be made on notice to the Plt: Wye Valley Rail. Co. v. Hawes, 16 Ch. D. 489, C. A.; see Edison and Swan Electric Co. v. Holland, 33 Ch. D. 497.

As to whether a third party can bring in a fourth, see Witham v. Vane, 49 L. J. Ch. 242; Walker v. Balfour, 25 W. R. 511; Dan. 236, 237.

The leave will not be given where the effect would be to materially embarrass the Plt: Wye Valley Rail. Co. v. Hawes, 16 Ch. D. 489, C. A.

In giving the leave the Court will not consider whether the claim to contribution or indemnity is valid, but only whether it is bona fide, and if established will result in contribution or indemnity: Carshore v. N. E. Rail. Co., 29 Ch. D. 344, C. A.; Edison and Swan Electric Co. v. Holland, 33 Ch. D. 497.

By r. 52 application is to be made to the Judge by the Deft giving the notice for directions as to the mode of trial.

As between co-Defts, the question whether there is a case for contribution or indemnity should be raised on this application, and not by an application to set aside the service of the notice: Baxter v. France, (1895) 1 Q. B. 455,

C. A.

Where all the matters in dispute between the Deft and the co-Deft as third party could not be determined in the action, and the right to the indemnity claimed was very doubtful, the Court refused to give directions: Baxter v. France (No. 2), (1895) 1 Q. B. 591, C. A.

The procedure under the Rules of 1883 is strictly limited to claims to "contribution or indemnity." A right to indemnity, arising as it does from contract, express or implied, is quite distinct from a right to damages, which arises in consequence of a breach of contract previously made: see Birmingham, &c. Land Co. v. L. & N. W. Rail Co., 34 Ch. D. 261, C. A. Thus a covenant by sub-lessee to repair, though following terms of covenant by lessee with original lessor, does not confer on the lessee a right to "contribution or indemnity" within O. XVI, 48, in respect of breaches of the covenant by him with the lessor: Pontifex v. Foord, 12 Q. B. D. 151; nor is the rule applicable to a claim by sub-lessee that he was induced by lessee to commit breach of covenant, and that lessee had given him a covenant for quiet enjoyment: Tritton v. Bankart, 56 L. J. Ch. 629; 35 W. R. 474; 56 L. T. 306; nor to a claim by trustees, who are sued for breach of trust, to indemnity against the estate of a deceased beneficiary whose exors are one of the Plts, one of the Deft trustees and a person who is not a party to the action: In re Gilson, G. v. G., (1894) 2 Ch. 92; and the right of a trustee to recover from the surviving partners of the firm of solrs who acted for the trustees and received trust moneys which were misapplied by a deceased trustee and co-partner is an independent right and not one depending on the liability of the trustee to replace the money: Wynne v. Tempest, (1897) 1 Ch. 110. But, on the other hand, a contract by a sublessee to perform the covenants in the original lease is a contract of indemnity: Hornby v. Cardwell, 8 Q. B. D. 329, C. A. And so is a covenant by an assignee to indemnify the assignor against past breaches: Gooch v. Clutterbuck, (1899) 2 Q. B. 148, Č. A.; and for further instances of the distinction, see Constantine & Co. v. Warden, W. N. (95) 143, C. A.; 73 L. T. 450; 44 W. R. 313; The Jacob Christiensen, (1895) P. D. 281.

A claim by a purchaser that he was induced to buy by misrepresentation of auctioneer, that purchase-money might remain on mortgage, is not a claim to indemnity: Catton v. Bennett, 26 Ch. D. 161; nor can a warranty of seaworthiness be treated as a contract to indemnify against loss arising from unseaworthiness: Speller v. Bristol Steam Navigation Co., 13 Q. B. D. 96, C. A.

Under the usual suing and labouring clause in a marine policy, being a contract to pay the assured expenses which he might incur, but not to indemnify him against claims by others against him, the underwriters could not be brought in as third parties: Johnston v. Salvage Association, 19 Q. B. D. 458, C. A.

But in an action against a railway co. to reinstate name of Plt as owner of stock transferred on a forged transfer, the co. were entitled to serve a third party notice upon the transferee: Carshore v. N. E. Rail. Co., 29 Ch. D. 344, C. A.

The procedure applies where the indemnity is given after action brought: Edison and Swan Electric Co. v. Holland, 33 Ch. D. 497.

And as to third party procedure, see Dan. 230 et seq.; D. C. F. 80—86.