any manner specified or indicated in such contract. Service of any such writ of summons at the place (if any) or on the party or on the person (if any) or in the manner (if any) specified or indicated in the contract shall be deemed to be good and effective service wherever the parties are resident, and if no place or mode or person be so specified or indicated, service out of the jurisdiction of such writ may be ordered " (R. S. C., 1920).

"3. In probate actions service of a writ of summons or notice of a writ of summons may by leave of the court or a judge be allowed out of the jurisdiction.

"4. Every application for leave to serve such writ or notice on a defendant out of the jurisdiction shall 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 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.

"5. Any order giving leave to effect such service or give such notice shall limit a time after such service or notice within which such defendant 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.

"6. When the defendant is neither a British subject nor in British dominions, notice of the writ and not the writ itself is to be served upon him.

"7. Where leave is given under rules 1 and 6 of this order to serve notice of a writ of summons out of the jurisdiction, such notice shall subject to rule 8 of this order be served in the manner in which writs of summons are served.

"8. Where leave is given to serve notice of a writ of summons in any foreign country to which this rule may by order of the Lord Chancellor from time to time be applied, the following procedure shall be adopted:

"(1) The notice to be served shall be sealed with the seal of the Supreme Court for use out of the jurisdiction, and shall be transmitted to His Majesty's Principal Secretary of State for Foreign Affairs by the President of the Division, together with a copy thereof translated into the language of the country in

which service is to be effected, and with a request for the further transmission of the same to the government of the country in which leave to serve notice of the writ has been given," &c.

"Sa. Service out of the jurisdiction may be allowed by the court or a judge of the following processes or of notice thereof, that is to say:

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(a) Originating summonses under Order LIVA. or Order LV. rule 3 or 4 in any case where if the proceedings were commenced by writ of summons they would be within rule 1 of this order.

"(b) Any originating summons, petition, notice of motion or other originating proceeding (i.) in relation to any infant or lunatic or person of unsound mind, or (ii.) under any statute, . . . or (iii.) under any rule of court or practice, whereunder proceedings can be commenced otherwise than by writ of

summons.

"(c) Without prejudice to the generality of the last foregoing sub-head any summons, order or notice in any interpleader proceedings or for the appointment of an arbitrator or umpire or to remit, set aside or enforce an award in an arbitration held or to be held within the jurisdiction.

"(d) Any summons, order or notice in any proceedings duly instituted, whether by writ of summons or other such originating process as aforesaid.

"Rules 2, 4, 5, 6, 7 and 8 of this order shall apply mutatis mutandis to such service.

"Nothing herein contained shall in any way prejudice or affect any practice or power of the court under which, when lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the court may, without affecting to exercise jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings with a view to such persons having an opportunity of claiming, opposing or otherwise intervening."

Rule 9 provides the procedure for giving effect to letters of request from foreign tribunals for service of process on persons in England.

Rule 10 authorises orders for substituted service under rule 9. This is Order XI. of 1883 as amended by the rules of July, 1903, August, 1909, March, 1911, May, 1912, August, 1916, July, 1920, and July, 1921. The following cases relating to its different heads have been decided.

Rule 1.

Where a case falls only in part under this rule, unconditional appearance is a submission to the jurisdiction as to the whole claim: Manitoba and North-West Land Corporation v. Allan, [1893] 3 Ch. 432, North.

1 (a). An action for expenses caused by excessive use of the public road held not to be within this sub-section or sub-section (e). Clare County Council v. Wilson, [1913] 2 I. R. 89.

1 (b). An action for slander of title to land is not within this head: Casey v. Arnott (1876), 2 C. P. D. 24, Grove and Denman; decided on the rules of 1875. Nor is an action for rent: Agnew v. Usher (1884), 14 Q. B. D. 78, Coleridge, Mathew and Smith. In Wilson's Practice of the Supreme Court, 7th ed., p. 151, it is said that the court of appeal affirmed this decision on the ground that the plaintiff had not shown that the defendants were assignees of the lease. An action to recover compensation for tenant right according to the custom of the country is within this head: Kaye v. Sutherland (1887), 20 Q. B. D. 147, Stephen and Charles. An action on a breach of covenant to repair contained in a lease is within this head: Tassell v. Hallen, [1892] 1 Q. B. 321, Coleridge and Collins; and see Att.-Gen. v. Drapers' Co., [1894] 1 I. R. 185, where service in England was allowed by the Irish courts for a breach of trust as to lands in Ireland.

1 (c). As to the domicile or residence of corporations, see below, in the chapter on Corporations and Public Institutions.

The residence of an ambassador's wife at the embassy is not a residence within the jurisdiction under this rule. Ghikis v. Musurus, [1909] 25 T. R. 225, Parker.

1 (d). The existence of such property within the jurisdiction is a condition precedent to service under this head: Winter v. Winter, [1894] 1 Ch. 421, Stirling. For a curious case where the county court rule was wider than this rule and difficulties consequently arose on a transfer of the case to the High Court, see Wood v. Middleton, [1897] 1 Ch. 151. 1 (e). It is not necessary that performance within the jurisdiction be expressly stipulated, but it must result from the contract: Bell & Co. v. Antwerp, London and Brazil Line, [1891] 1 Q. B. 103, Esher and Kay affirming Cave and Day. On a contract for the transfer of shares, it was held that the obligation to such performance resulted from the duty of delivering the deed of transfer to the transferee, who was resident within the jurisdiction: Reynolds v. Coleman (1887), 36 Ch. D. 453, Kay affirmed by Cotton and Bowen. On a contract by a foreign company to employ the plaintiffs as their sole representatives in England it was held that the contract imported an obligation to refrain from interference within the jurisdiction with the agency: Mutzenbecher v. La Aseguradora Española, [1906] 1 K. B. 254, Collins and Gorell Barnes. On a contract for machinery to be erected out of the jurisdiction by plaintiffs resident within it, it was held that the order applied because the defendants were bound to send or bring the price to the plaintiffs: Robey v. Snæfell Mining Co. (1887), 20 Q. B. D. 152, Stephen and Charles; Thompson v. Palmer, [1893] 2 Q. B. 80, Esher, Lopes and A. L. Smith. Similarly on a consignment of goods to be sold in Germany: Rein v. Stein, [1892] 1 Q. B. 753, Lindley and Kay affirming Cave and Vaughan Williams. Similarly, on a contract for sale of champagne by the defendants out of the jurisdiction as agents of the plaintiffs domiciled in England: Charles Duval & Co., Lim. v. Gans, [1904] 2 K. B. 685, Stirling and Mathew. In Drexel v. Drexel, [1916] 1 Ch. 257, at p. 260, Nevile, it was held that non-payment of a

separation allowance to a wife resident in England was a breach within the jurisdiction, though no place of payment was mentioned in the deed. Prior to the issue of the rule in 1921 amending the previous rule, it was held in the House of Lords that where the essential breach of a contract made in England took place out of the jurisdiction, the fact that there was a consequential failure to carry out the terms of the contract in England did not give a basis of jurisdiction to the English court. Johnson v. Taylor Bros., [1920] A. C. 144, Birkenhead, C., Haldane, Dunedin, Atkinson and Buckmaster, overruling Bankes, Warrington and Scrutton, L.JJ. The contract was to ship iron from Sweden to England over a period of years, and the essential breach was failure to ship the goods: the incidental failure to deliver the shipping documents in England was not sufficient to found jurisdiction under the old rule. But the tendency of the British rule-making authority has been continually to enlarge the jurisdiction in contract of the English courts over foreign persons entering into engagements to be performed in England and to derogate from the rule actor sequitur forum rei where there is any basis for so doing. It is notable that the case of Johnson v. Taylor was distinguished in a later appeal to the Privy Council: Hemsbryck v. Wm. Lyall Shipping Co., [1921] A. C. 698, when it was held that the repudiation by the buyer under a contract for sale of ships to be delivered within the jurisdiction, but to be paid for outside the jurisdiction, was a real and substantial breach which justified an order for service outside the jurisdiction. The wording of the later rule dispels any doubts.

An action to enforce payment on a contract of salvage of a ship on the coast of England is not within this head, if the place of payment is abroad: The Eider, [1893] P. 119, Jeune, Esher, Lindley and Bowen. Nor if the payment was not bound to be made in cash within the jurisdiction: Comber v. Leyland, [1898] A. C. 524, Halsbury, Herschell, Macnaghten, Morris and Shand overruling Esher, A. L. Smith and Rigby. Nor on a sale of goods under a c.i.f. contract to be shipped from a place not within the jurisdiction: Crozier, Stephens & Co. v. Auerbach, [1908] 2 K. B. 161, Vaughan Williams and Farwell overruling Bigham and Barrow V. Myers, 4 T. R. 441, Manisty and Mathew. But in Biddell Bros. v. Horst & Co., [1912] A. C. 18, it was held that in a c.i.f. contract between a foreign vendor and English purchaser, the place of performance is England unless there are special items in the contract showing a contrary intention, and a claim for the non-delivery of the shipping documents may be made in England. When a judge is in doubt whether there has been a breach of contract within the jurisdiction, he may make an order for service out of the jurisdiction, at the same time imposing on the plaintiff the condition of recovering at the trial only the amount as to which it shall appear that service out of the jurisdiction was proper: Thomas v. Hamilton (1886), 17 Q. B. D. 592, Day affirmed by Esher, Bowen and Fry. The dismissal of a London correspondent of a foreign newspaper by a letter written abroad is not a breach within the jurisdiction under this head: Holland v. Bennett, [1902] 1 K. B. 867, Vaughan Williams and Mathew.

Prior to the addition of sub-section (h) it was held that an action for foreclosure of a mortgage was not an action on a contract under this head: Deutsche National Bank v. Paul, [1898] 1 Ch. 283, Stirling; nor action to enforce a charging order against shares in an English company : Kolchmann v. Meurice, [1903] 1 K. B. 534, Vaughan Williams, Stirling affirming Joyce. The conditions in the new form of the order on which a writ may be served are disjunctive; and, therefore, when the

contract was made within the jurisdiction, there is power to order service out of the jurisdiction though it was not to be governed by English law. Wansbrough Paper Co. v. Laughland, [1920] W. N. 344, Bankes, Scrutton and Atkin. Conversely, when a contract was made in New York between a Canadian company, with an office in London, and a foreign subject, and it was expressly stipulated that it should be considered to be duly made and executed in London," it was held by its terms to be governed by English law, and therefore leave to serve the writ out of the jurisdiction was rightly ordered. British Controlled Oilfields, Lim. v. Stagg, [1921] W. N. 319, Sargant.

There is no power under this head to order service out of the jurisdiction on a defendant domiciled or ordinarily resident in Scotland or Ireland; the express exception in rule 1 (e) is not reduced by rule 2 to a discretionary exception: Lenders v. Anderson (1883), 12 Q. B. D. 50, Grove and Huddleston, Field agreeing, and see Channel Coalin Co. v. Ross, [1907] 1 K. B. 145, Alverstone and Darling; a similar case under the county court rules. And substituted service cannot be resorted to in such a case: Hillyard v. Smith (1887), 36 W. R. 7, Smith and Charles. An express agreement that the writ may be served on an agent in England is valid: Montgomery Jones & Co. v. Liebenthal & Co., [1898] 1 Q. B. 487. an agreement that the writ may be served on the defendant in Scotland is void: British Wagon Co., Lim. v. Gray, [1896] 1 Q. B. 35, Esher, Lopes and Kay. It is doubtful, however, whether this ruling would apply now in view of the express terms of the new rule 2 (a).

But

1 (f). See Tozier v. Hawkins (1885), 15 Q. B. D. 650, Coleridge and Cave; ib. 680, Brett, Baggallay and Bowen; and, for a case of infringement of a patent in England by foreigners abroad, Chemische Fabrik vormals Sandoz in Basel v. Badische Anilin und Soda Fabrik, [1904] 20 T. R. 552, Macnaghten, Davey, James and Robertson, affirming Collins, Romer and Cozens-Hardy, who affirmed Joyce. Apparently service under this head would not be allowed if it were shown that there were not, and were never likely to be, any means of enforcing the injunction in England. See De Bernales v. New York Herald, [1893] 2 Q. B. 97 (note), Lopes and Coleridge, at p. 98; where leave was refused also on the ground that the claim for an injunction was not made bonâ fide, but was added for the purpose of bringing the case within this head. The court has a discretion: Re De Penny, De Penny v. Christie, [1891] 2 Ch. 63, Chitty. Leave was refused in the case of an alleged libel published in a Scotch newspaper, only a few copies of which were sold in England; Watson & Sons v. Daily Record (Glasgow) Lim., [1907] 1 K. B. 853, Collins and Cozens-Hardy overruling A. T. Lawrence. Leave was allowed by the Irish courts in an action against a company out of the jurisdiction, for an injunction to restrain the company from publishing in Ireland an advertisement containing pictures of the plaintiff, said to be libellous. The mischief complained of was resented locally, and the remedy must be made effective locally Dunlop Rubber Co., Lim. v. Dunlop, [1921] 1 A. C. 367, H. L., Birkenhead, Moulton, Atkinson, Buckmaster, affirming Irish Court of Appeal. The service was upheld in a bona fide case; Alexander & Co., Lim. v. Valentine & Sons [1907] Lim., [1908] 25 T. R. 29, Buckley and Kennedy. As to what is a "thing to be done within the jurisdiction see The Badische Anilin und Soda Fabrik v. Basel Chemical Works, Bindschedler, [1898] A. C. 200, Halsbury, Herschell, Macnaghten and Davey.

An English court has no jurisdiction to grant an injunction restraining