under protest and the appearance of D. on that defence did not amount to waiver of the objection to jurisdiction. Semble, that the absence of a rule fixing the time for service where service is to be effected beyond the State does not prevent service under The Service and Execution of Process Acts, 1901-1912, or affect the validity of such service. APPEAL FROM MAGISTRATES COURT. P. D. Mutch brought an action in a Magistrates Court against F. T. Dalley claiming £96 4s. 6d., the balance due as principal and interest in respect of a promissory note made by the defendant in favour of the plaintiff which had been dishonoured on presentation at the branch of Australian Bank of Commerce Ltd., at Killarney, in Queensland. The promissory note was in the following form:-- 3 Duty Stamp £143/0/0. December 9th 1918. Due April 12th 1919. Payable at A. Bank of Commerce F. T. Dalley Jnr. Killarney. Endorsed P. D. Mutch; W. J. Morris. L.S. The Australian Bank of Commerce Limited, At the time the promissory note was made and delivered, and at the time when it was dishonoured, the plaintiff and the defendant were residents of New South Wales. At the time the action was commenced and when the summons therein was served the plaintiff was resident in Queensland, and the defendant was resident in New South Wales. The service was effected under The Service and Execution of Process Acts, 1901-1912. The defendant entered a defence to the action under protest, and, inter alia, pleaded that the Magistrates Court had no jurisdiction; and when the case was called on for hearing gave the grounds of his plea to the jurisdiction as follows: "(1) the alleged contract was made out of Queensland; (2) defendant never resided in Queensland or carried on business in Queensland; (3) defendant was not in Queensland when the alleged cause of action arose or process was served; (4) the Act (The Service and Execution of Process Acts) under which the plaintiff claims to serve the process does not apply to the facts of this case. (That means service not effective, as this Court not having jurisdiction The Service and Execution of Process Act does not apply)." F.C. MUTCH . F.C. MUTCH r. The Magistrate decided that he had no jurisdiction, and ordered the action to be struck out, and that certain costs be paid by the plaintiff. The plaintiff thereupon brought this appeal to the Full Court. Hort for the appellant: The Service and Execution of Process Acts, 1901-1912, have forced jurisdiction on residents of other States, and provided the necessary machinery therefor. Delaney v. Great Wester Milling Co. (1), M'Glew v. N.S. W. Malting Co. (2), Luke v. Mayoh (3), Sanderson & Co. v. Crawford (4). [MCCAWLEY, C.J. referred to Ex perte Gove (5).] At the time of the issue of the summons, the plaintiff was residing in Queensland; the fact that the contract was made in New South Wales is immaterial. If a defendant appears, the Court has jurisdiction to entertain any action which is inferred by an Act of the State Legislature to be within the jurisdiction of the Court. The Queensland Legislature has not restricted the jurisdiction of Magistrates Courts to the trial of cases where the defendant is resident in Queensland. Magistrates Courts Rules, rr. 33, et. seq, The Magistrate misdirected himself as to the effect of the memorandum on the promissory note. The memorandum was equivalent to an undertaking that there would be cash at the place of payment, and it also operated as an order on the Bank to pay at that place. Rowe v. Young (6), Sanderson v. Judge (7). He also referred to Cooke v. Gill (8), Williams v. Waring (9), Mosters v. Bretto (10), Huth v. Long (11), Maschwitz v. Searles (12), Lukin on Justices in Civil Jurisdiction. pp. 30, 31; City Finance Co. Ltd. v. Matthew Harvey & Co. Ltd. (13), Hart on Banking, 3rd Ed., p. 499. Welsh for the respondent: The Service and Execution of Process Act does not extend the jurisdiction of the Magistrates Courts. The Legislature of Queensland did not give to those Courts jurisdiction over non-residents of Queensland, and therefore the Magistrate's decision was right. Ex perte Gove (14), City Finance Co. Ltd. v. Matthew Hervey & Co. Ltd. (13). The memorandum on the promissory note forms no part of the contract, and (1) 1916, 22 C.L.R. 150. (2) 1918, 25 C.L.R. 416. (3) 1921, 29 C.L.R. 43.5. (4) 1915, V.L.R. 568. (5) 1921, 21 S.R. (N.S.W.) 548. (8) 1873. L.R. 8 C.P. 107 (9) 1829, 8 L.J. O.S., K.B. 7. (10) 1849, 8 C.B. 433; 137 E.R. 578. (11) 1850, 19 LJ. Q.B. 325, (12) 1903. St. R. Qd. 238. (6) 1820, 2 Bli. 391; 2 B,od. & Bing 165, (13) 1915, 21 C.L.R. 55. (7) 1795, 2 Hy. Bl. 510. (14) 1921, S.R. (N.S.W.) 548. does not bring the transaction within r. 33 of the Magistrates Courts Rules. McMahon v. McLean (1), Williems v. Waring (2), Masters v. Baretto (3), and cases referred to in English and Empire Digest, vol. 6, pp. 241, 241: Exon v. Russell (4), Price v. Mitchell (5). Hart in reply: There was no need for the Queensland Legislature to confer intra-territorial jurisdiction on Magistrates Courts, as The Magistrates Courts Act of 1921 became law after The Service end Execution of Process Act was enacted. [MCCAWLEY, C.J., referred to Harris v. Taylor (6)]. The plaintiff was cross-examined on the merits of the case by the solicitor for the defendant, who thus submitted to the jurisdiction. by The judgment of McCawley C.J. and Macnaughton J. was read F.C. MUTCH V. MCCAWLEY C.J.: Mutch, the appellant in this case, the plaintiff McCawley C.J. in the Court below, brought in the Magistrates Court at Killarney an action against Dalley, the respondent, for the balance of principal and interest in respect of a promissory note in favour of Mutch. The promissory note had been made and delivered in New South Wales. At the time the note was made and delivered, and at the time it was dishonoured, both the plaintiff and defendant were in New South Wales and resident there. At the time when the action was brought and the summons served under The Service and Execution of Process Acts, 1901-1912, the plaintiff was resident in Queensland, but the defendant was in New South Wales and resident there. The promissory note was not in the body thereof made payable in Queensland, but a place of payment-the Australian Bank of Commerce Limited, Killarney-was indicated, by memorandum only, at the foot of the note. The defendant entered a defence under protest on the ground, inter alia, that the Court had no jurisdiction to entertain the action. On the case being called on for hearing he, by his solicitor, stated as the particulars of this ground of defence: (i.) the alleged contract was made out of Queensland; (ii.) defendant never resided in Queensland or carried on business in Queensland; (1) 1896, 17 N.S. W. L.R. 304. (4) 1816, 4 M. & S. 505. F.C. MUTCH V. DALLEY. McCawley C.J. (iii) defendant was not in Queensland when the alleged cause of action arose or process was served; (iv.) the Court not having jurisdiction, the Service and Execution of Process Acts did not apply. The Magistrates Courts Act of 1921 contains no provision authorising service outside the State. Apart from the Service and Execution of Process Act, the service in this case would have been a nullity and, the defendant not having been legally served, the Court would have had no jurisdiction to entertain the action. City Finance Co. Ltd. v. Matthew Harvey & Co. Ltd. (1). Is the Court enabled to entertain the action by reason of the service under the Federal Act? It cannot do so, if the decision of the Full Court of New South Wales in Ex parte Gove (2) is good law. That Court held that under the District Court Act of New South Wales-the provisions of which are substantially similar to The District Court Act of 1891 of this State (now repealed), upon which The Magistrates Courts Act of 1921 and Rules are in large measure based--the District Court had no jurisdiction against residents of another State served in that State under the Federal Act. They held that the facts of the case were not distinguishable from The City Finance Case (3), save in respect of service, and they held that the fact of service was insufficient to make the case inapplicable, since the Federal Act did not extend jurisdiction, and did not purport to extend it. "Once it appears that the defendant is out of New South Wales," said Ferguson J., "it is clear that the Court has no jurisdiction, and service under the Commonwealth Act can give no jurisdiction." Wade J. said that once it is proved that the defendant was resident in another State, the jurisdiction is ousted. In Ex parte Gove (4), the City Finance Case (5) was regarded as laying down the general proposition that the District Court Act applied only to persons within the territorial jurisdiction. In the City Finance Case Griffith C.J. and Cavan Duffy J. say, at p. 59: "The coercive jurisdiction of the Legislature of New South Wales is limited to persons and things for the time being within the territorial limits of the State, although it may, by appropriate legislation, indirectly affect persons not within the jurisdiction. But the intention to do so must clearly be expressed. Prima facie a statute conferring jurisdiction on a Court will be construed as limited, in its application, to persons within the territorial jurisdiction." (1) 1915, 21 C.L.R. 55. (2) 1921, S.R N.S.W. 548. (4) 1921, S. R. N.S. W. 548. (5) 1915, 21 C.L.R. 55. 116. F. C. MUTCH v. DALLEY. At p. 61 they say that there is no provision in the Act that can be pointed to as indicating an intention to confer jurisdiction over persons not within the territorial jurisdiction. See also the remarks of Isaacs J. at p. 64. It would appear, however, that McCawley C J. the decision can be sustained on the ground that the defendant was not served and did not submit to the jurisdiction (per Isaacs J., at p. 68). The High Court had not under consideration the effect of The Service and Execution of Process Act, and it is possible that they would decide that the District Court of New South Wales would have jurisdiction in otherwise similar circumstances if the defendant were served under the Federal Act. If, however, the residence or personal presence of the defendant within the State at some material time is necessary to found jurisdiction, there was no such residence or presence in the case now under consideration, the defendant not having been a resident of Queensland at any time, nor present in Queensland at the time of making the contract, or at the time of breach, or at the time of service of process. By s. 14 of The Acts Shortening Act, in any enactment all reference to localities, jurisdictions and other matters and things shall be taken to relate to such localities, jurisdictions and other matters and things within and of the said colony, unless the contrary shall appear to have been intended by the Legislature. It may be contended that the "actions" referred to in the Magistrates Courts Act embrace not only actions wherein the defendant is at some material time in Queensland, but also actions where the cause of action arises within the State, provided the defendant is legally served-whether within or without the State-with the process of the Court. Assuming, but not deciding, that the Act applies to such last-mentioned actions, it becomes necessary to inquire whether the cause of action arose within the State. 66 If the term cause of action" is to be regarded in the technical sense as meaning "every fact which is material to be proved to entitle the plaintiff to succeed-every fact which the defendant would have a right to traverse "-Cooke v. Gill (6)---the cause of action here did not arise in whole or in part within Queensland. The only Queensland fact which it could be contended was relevant was the fact that the note was presented at Killarney and dishonoured. But as against the maker of a note which is not in the body made payable at a particular place, presentment is not necessary (s. 93 of The Bills of Exchange Act, 1909); it was not |