or an illegality, in the process by which the defendants *were

brought before the court. Is not that procedure?] It is sub- [*244

mitted that the Irish court had no jurisdiction over an English corporation. [CRESSWELL, J.-The cases cited show that the Irish courts have long assumed to have jurisdiction under such circumstances.] It may be to the extent of any property the corporation may have in Ireland: otherwise they clearly could have no jurisdiction except such as is conferred by the 13 & 14 Vict. c. 18. [COCKBURN, C. J.-That statute does not affect to confer jurisdiction. It only provides for substitution of service of process. It applies to the procedure only. Suppose an incorporated company carrying on business in London and in Dublin, contract a debt in Dublin, where they are represented only by an agent,―would they not clearly be within the jurisdiction of the Irish courts, though, but for some statutory provision, beyond the immediate reach of the process of the court? The object of the act was, to substitute some other service than that which the law ordinarily provides. How can we deal with the question whether the service of the process has been in accordance with the course and practice of the Irish court?] It is submitted that the Irish court has no jurisdiction over non-resident strangers, except that which is given them by the statute. In the case of corporate bodies, the jurisdiction clearly is given by the 8th section. The 9th section applies to natural persons only, and not to corporations and no aid can be derived from the interpretation clause. Besides, there is no finding that the copy of the writ of summons, and of the order of the court, were sent to the London agent: the person to whom they were sent might or might not be the agent of the company. [CRESSWELL, J.-The special verdict may be amended in that respect, if necessary.] Then, the order was, for service of a copy of the writ of summons. That which was sent was not a "copy;" the word "Life" being omitted in the description of the *company; [*245 and in this respect, the affidavit and the order follow the supposed copy of the writ. Now, inasmuch as a corporate body exists only in name, the name is of the essence of the corporation. And this is a defect which cannot be remedied by amendment.

As to the second count,-Patrick v. Shedden, 2 Ellis & B. 14 (E. C. L. R. vol. 75), is an authority to show that an action will not lie upon an order for interlocutory costs. In Russell v. Smyth, 9 M. & W. 810,† the decree was final: it was in effect a judgment. But the mere order of another court for the payment of costs, is not a good ground of action: Fry v. Malcolm, 4 Taunt. 705. So, in Hookpayton v. Bussell, 10 Exch. 24,† it was held that no action will lie upon an undertaking contained in a judge's order, though the order be made by consent, and the undertaking be founded upon a good consideration. Pollock, C. B., there says: "The proper remedy for disobedience of the order, is, by attachment. We ought to guard against attempts to

create new causes of action, and new modes of multiplying costs." And Martin, B., observes, that, "if the argument on behalf of the plaintiff is correct, an action would lie for the disobedience of every judge's order in which a party undertakes to do some act." In Emerson v. Lashley, 2 H. Bla. 248, it was held that no action will lie in a superior court, to recover costs ordered to be paid by a rule of an inferior court in the course of a suit there, notwithstanding, the defendant should not be liable to an attachment of the inferior court, by being resident out of its jurisdiction. Eyre, C. J., in giving judgment, there says,—" If there were nothing else in this case but the mere circumstance of its being an action brought for the first time, the court would think again and again before they would give it any encouragement. In general, there is another remedy (however that remedy may fail in an inferior court, whose jurisdiction is local); and the consequence of our determining that an action would *lie for such costs as these, would be, *246] that, instead of applications to the court for their superior interference, numberless actions would be brought, of which we have enough already. And, upon general principles of law, it seems pretty clear that no action can lie for such costs. In actions brought in superior courts, the costs become a duty only by being united with the debt in the judgment: there is that sort of credit given to the judgments of a court, that they create debts and duties upon which actions of debt are founded. General policy and convenience require that faith should be given to those judgments, and that duties should arise: but, as to the conduct, and all the steps belonging to the conduct of the interlocutory proceedings, they are fit to be regulated by the authority of the court where they arise, but by no means fit to be the foundation of general duties creating moral obligations. It is the power of the court that enforces these kind of orders; and the power of the court will always be regulated by the discretion of the court in causes which come before them." That reasoning exactly applies to this case. In Carpenter v. Thornton, 3 B. & Ald. 52 (E. C. L. R. vol. 5), where a bill had been filed for the specific performance of an agreement for the purchase of an estate, and the decree was for payment of interest on the purchasemoney, and costs,-it was held that no action at law was maintainable to recover such interest and costs. And Holroyd, J., said: "There is no instance of an action brought on a rule of court for payment of money. The mode of enforcing such an order, is, by attachment for contempt in not obeying an order of the court. Now, although that does not absolutely show that such an action is not maintainable; yet, where no such action has ever been maintained, it lies on the party bringing such action to state a clear principle on which it is maintainable." So, in Dent v. Basham, 9 Exch. 469,† it was held that no action lies for disobedience of a *judge's order made under the 6 & 7 Vict. c. 73, s. 37, for the delivery of a bill of costs,-and

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upon the same ground, viz. that attachment is the appropriate remedy. Alderson, B., there says: "The only way in which these orders can be enforced, is that which is expressly given, viz. by attachment. I quite agree with what was said by two of the learned judges in Emerson v. Lashley, that this is a form of proceeding to which no encouragement ought to be given; and that it is better to submit to a particular inconvenience than to introduce a general mischief. For, if it were held that an action would lie in the present case, inasmuch as scarcely an order is ever obeyed within a reasonable time, an action would be brought in almost every case." The order itself creates no debt: nor does it become a debt by reason of the fact of the party being, or subsequently going, out of the jurisdiction.

Shee, Serjt., in reply.-The 9th section of the 13 & 14 Vict. c. 18, enacts, that, in case it shall be made appear by affidavit to the satisfaction of the court, that any defendant has not been personally served with any writ, and has not appeared to the action, and that due and proper means were used to serve such writ,-or that such defendant resides out of the jurisdiction of the court and can be properly served through or upon an agent within such jurisdiction, or has removed to avoid service,—or on any other good and sufficient grounds,—it shall be lawful for such court or judge to authorize such substitution of service, through the post office, or in such manner, and with such extension of time for service and appearance, as to them shall seem fit. [COCKBURN, C. J.-What "other ground" do you suggest for the substitution of service, than that the defendants are out of the jurisdiction ?] All the cases relied on by the other side are cases in which there was no difficulty in *enforcing the order during the whole [*248 course of the proceedings. [CROWDER, J.-Do you insist that you can support an action upon the judgment, supposing the 13 & 14 Vict. c. 18, s. 9, not to apply?] The order for substituted service was well made, independently of that section. A judgment, though obtained against an absent party, is not contrary to natural justice, if there has been an opportunity afforded him to appear. In Reynolds v. Fenton, 3 C. B. 187 (E. C. L. R. vol. 54), in assumpsit on a judgment or decree of the Tribunal of Commerce at Brussels, the defendant pleaded, that he was not at any time served with any process issuing out of that court, at the suit of the plaintiffs, for the causes of action upon which the said judgment or decree was obtained, nor had he at any time notice of any such process, nor did he appear in the said court to answer the plaintiffs: and the plea was held bad, inasmuch as it did not show that the proceedings against the defendant in the Belgian court were so conducted as to deprive the defendant of the opportunity of defending himself therein. Upon the case of Ferguson v. Mahon, 11 Ad. & E. 179 (E. C. L. R. vol. 39), 3 P. & D. 143, being cited, Maule, J., there says: "I take the distinction between that case and

the present to be this: the court there could take judicial notice that the law of Ireland is the same as the law of this country with regard to the commencement of the suit by process: but, how do we know that there may not be a good commencement of a suit in Belgium by verbal summons ?" Cur. adv. vult.

CRESSWELL, J., delivered the judgment of the court:

This was an action on a judgment obtained in the Court of Queen's Bench in Ireland.

In the first count the plaintiff declared, that, in the Court of Queen's Bench in Ireland, he recovered against the defendants 7681., adjudged to be due from them to *the plaintiff, and 277. 13s. 11d. for *249] damages for the detention thereof, and costs. In the second count, that the Court of Queen's Bench in Ireland, by a certain order and decree did further award and adjudge unto the plaintiff, in a certain proceeding then taken by the defendants before the said court in the said suit upon the said judgment, the sum of 127. 6s. 1d., to be paid by the defendants to the plaintiff for costs by him in such suit in that behalf further expended. The third count was for interest.

The defendants pleaded,-first, never indebted, upon which issue was joined, secondly, that they were not at any time served with any summons or process issuing out of the said Court of Queen's Bench in Ireland, and that the plaintiff irregularly and behind the back of the defendants caused an appearance to be entered for them in the said action, and thereby obtained the judgment therein when the defendants were not within the jurisdiction of the said court, and had not been served with any summons or process to appear in the said action.

The plaintiff replied, that the action was commenced after the passing of the statute 13 Vict. c. 18, by writ of summons; that it was made to appear to the court by affidavit that the defendants had not been personally served, but that they resided out of the jurisdiction of the court, and could be properly served through or upon a certain agent or representative of the defendants within the jurisdiction; whereupon an order was made that it should be served by delivering a copy of the writ and of that order to the said agent, and by sending copies of the writ and order through the general post to the secretary and manager in London; and that the plaintiff complied with such order.

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The defendants rejoined, that the plaintiff obtained the order by falsely representing to the court that J. W. *Ramsay was the agent of the defendants within the meaning of the statute. The plaintiff surrejoined, setting out the affidavit on which the motion was founded, and averring that it was true.

The defendants traversed the surrejoinder, and demurred.

This demurrer was argued in Trinity Term, 1853, when judgment was given in favour of the plaintiff, on the ground that the second plea was bad: see 13 C. B. 787 (E. C. L. R. vol. 76). The judgment of

Maule, J., proceeded on the ground that it was consistent with all the allegations of the plea, that the defendants appeared to the writ; but, without resorting to that reason, it appears to have been considered that the plea was bad, because it did not show that the defendants had not knowledge of the issuing of the writ of summons, and that this court could not take notice of a mere irregularity in the proceedings of the Court of Queen's Bench in Ireland.

The issues joined on the first plea, and the traverse of the surrejoinder, afterwards came on to be tried, and a special verdict was found, the material parts of which were as follows:-[His Lordship read the passages marked with brackets, and stated the questions reserved by the special verdict for the opinion of the court.]

It appears, then, that the defendants were a joint stock company duly registered in London, and carried on business in London, one E. Baylis being the manager, secretary, and actuary of the company in London; and that they also carried on business in Dublin by James Wilson Ramsay, their agent in that behalf; that a writ of summons was issued out of the Court of Queen's Bench against the company, and personally served on J. W. Ramsay, but not advertised in the Gazette or any newspaper; that afterwards an order was made by the *Court of Queen's Bench, that service of the writ of summons [*251 on the defendants, by delivering a copy to J. W. Ramsay, with a copy of that order, and by sending similar copies through the general post office, directed to the London agent, should be deemed good service of the writ; that the copies were accordingly served personally on J. W. Ramsay, and sent through the general post office directed to Edward Baylis, the manager, secretary, and actuary, at the company's office in London; that the company did not enter an appearance; that the court, on application to them, gave the plaintiff leave to enter an appearance for them, which was done, and other proceedings to judgment taken, according to the practice of the court; and that afterwards an application was made by the defendants to the Court of Queen's Bench in Ireland to set aside the appearance entered for the defendants, and all subsequent proceedings, which was dismissed with costs, which were taxed at 12l. 6s. 1d.

On the argument of this special verdict, it was contended for the plaintiff, that, by the 43 G. 3, c. 53, s. 8, the Court of Queen's Bench in Ireland had authority to order that service of process as effected in this case should be deemed good service. The words are,- Provided always, and be it further enacted, that, whenever it appears to the court out of which the process issues, that all due diligence has been used to have the process of the court personally served, yet that under the special circumstances of the case appearing to the court by the affidavit of the plaintiff or his attorney, or the attorney employed for the purpose of having the process personally served, that it was impossible to