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entered into abroad to deliver a quantity of manganese at a place within the jurisdiction, the Court held that a non-delivery at the place agreed on was not a cause of action arising within the jurisdiction. On the other hand, the Court of Common Pleas has held that it is not necessary that the entire cause of action should arise within the jurisdiction (Jackson v. Spittall, 39 L. J. Q. B. 321). Again the words "cause of action" in the section of the Civil Bill Act relating to costs, 14 & 15 Vict. c. 70, 8. 40 (see now sect. 97 of the C. L. P. Act, 1856), have been held to mean the entire cause of action (Hurley v. Lawlor, 6 Ir. Jur. O. S. 344).

Notwithstanding, however, the decisions to the contrary above referred to, the Courts of Common Law in this country have repeatedly held, that service of the summons and plaint may be substituted, provided a part of the cause of action arose within the jurisdiction (Betham v. Fernie, 4 Ir. C. L. R. 92; Kisbey v. Chester and Holyhead Railway Co., 6 Ir. C. L. R. 393; Reilly v. White, 11 Ir. C. L. R. 138).

But where the cause of action arose wholly out of the jurisdiction, the Court has no power to substitute service (Collins v. De Montmorency, 3 Ir. C. L. R. 473). Nor can a plaintiff join counts founded on such a cause of action with other counts, founded on a cause of action arising within the jurisdiction (Whyte v. Hill, 9 Ir. Jur. N. S. 288; Diamond v. Sutton, L. R. 1 Ex. 130).

How construed in this

country.

Joinder of

counts.

Where cause

of action

arises in

actions

As instances of cases where the cause of action is considered as arising within the jurisdiction, reference may be had to actions against carriers, where the contract is entered into abroad to carry to a place within the jurisdiction. In such cases the Court will substitute service in case of non- against delivery, no matter where the loss occurred (Kisbey v. Chester and Holy- carriers. head Railway Co., 6 Ir. C. L. R. 393; Powell v. Atlantic Steam Navigation Co., 10 Ir. C. L. R. App. 47; Aston v. London & North-Western Ry. Co., Ir. R. 1 C. L. 604). Compare with these cases, Watson v. Atlantic Steam Navigation Co., 10 Ir. C. L. R. 163; which, however, is distinguishable.

delivery..

The Court has also substituted service, where the contract was entered into within the jurisdiction, to carry to a place outside, and the breach occurred abroad (Stevenson v. London & N. W. Railway Co., Ir. R. 1 C. L. 672). Similarly in an action by buyer against seller for a non-delivery of goods In actions at a place within the jurisdiction (the contract having been entered into for nonabroad), service will be substituted (Adams v. Davison, 6 Ir. Jur. N. S. 390). And where, upon the purchase of a floating cargo it was agreed that the seller should repay to the buyer the value of so much of the cargo as should, upon arrival, prove to be damaged, in an action to recover the value of the damaged portion, the Court substituted service (Adams v. Mavro, 17 Ir. C. L. R, 686); with which compare Adams v. Geralopolo, 5 Ir. Jur. N. S. 217.

Where work and labour has been rendered in Ireland under a contract Work and made in England, the court will substitute service (Reilly v. White, 11 Ir. labour. C. L. R. 148). And in an action for wrongful dismissal, where the agent had been appointed by a letter posted in London and directed here, and dismissed by a similar letter, the Court substituted service (Hamilton v. Foreign and Mercantile Assurance Co., 3 Ir. L. T. 389).

Assurance.

The Court will substitute service where an action is brought upon a policy Policies of of insurance effected in this country with an English company (Kett v. Robinson 4 It. C. L. R. 186; Bethum v. Fernie, ib. 92).

Negotiable

As to actions upon negotiable instruments made abroad, see Fife v. Round, instruments. 6 W. R. 282.

Foreign judgments.

Due and proper means to effect service.

Where violence employed. Where defendant a lunatic.

Where de

fendant temporarily absent.

On whom

be substituted.

A foreign judgment for a debt contracted within the jurisdiction cannot be considered as a cause of action arising within the jurisdiction (Thelwall v. Yelverton, 16 C. B. N. S. 813; Warren v. Grier, 6 Ir. Jur. O. S. 233). (m). For this purpose, the affidavit in support of the application should set forth the nature and times of such attempts, and also the last known or present residence of the defendant, and likewise must show facts and circumstances sufficient to satisfy the Court that proper means have been used to effect service in the manner prescribed (Miller v. O'Brien, 1 Ir. Jur. N. S. 109); and see sect. 32, unte, note (g).

In cases where violence is offered to the process server, the Court will substitute service (Grady v. Kearny, 8 Ir. C. L. R. App. 44).

Where the defendant is a lunatic, orders have been made to substitute service on him by serving the keeper of the asylum (Wilmot v. Marmion, 8 Ir. L. R. 224; Vance v. O'Connor, 11 Ir. L. R. 60). The keeper, however, should allow access to the lunatic for the purpose of service; and if he refuse to do so, it will be a contempt of Court (Denison v. Harding, 2 W. N. 17). As to the subsequent proceedings in an action against a lunatic, see post, sect. 51.

(n). The Court will not make an order under this section, when the defendant is only temporarily absent out of the jurisdiction (M'Donough v. McCartney, 3 Ir. C. L. R. 239) in which case the defendant was away attending to his parliamentary duties (Coates v. Fennell, 6 Ir. Jur. N. S. 251). But if his absence be for the purpose of avoiding service, the section gives the Court power to substitute service in express terms.

(0) For the purpose of substituting service on a defendant out of the service may jurisdiction, it is not necessary that the person on whom it is sought to substitute service should be the general agent or representative of the defendant; but there should be shown to be that relation which imposes an obligation on the person receiving the writ to communicate it to the defendant, and the possibility of communicating it should be moreover shown (Reilly v. White, 11 Ir. C. L. R. 138; per Pigot, C. B., 142).

When an

agency exists "quoad hoc."

Policies of
Assurance.

Thus the Court will substitute service, where an agency exists between the defendant and such third person quoad hoc, i. e. as to the very subject matter of the suit (O'Dwyer v. Jackson, 4 Ir. Jur. N. S. 129; Purser v. Luscovich, 15 Ir. C. L. R. App. 10), in which case, another action being pending by the defendant against the plaintiff for the price of a cargo of grain, the Court allowed service to be substituted upon the defendant's attorney in the first suit, the cause of action relating to the cargo (Adams v. Davison, 6 Ir. Jur. N. S. 390; Wright v. Miller, x Ir. Jur. N. S. 295).

So also where an action is brought against a foreign merchant, and the action has relation to his mercantile transactions, the Court will substitute service on his agent here. Thus in an action for agency commission, where it appeared that the defendants, who were coffee merchants, had issued advertisements in which they announced that J. L. was their agent for Belfast, the Court made an order for substitution of service on J. L. (Reilly v. White, 11 Ir. C. L. R. 138); and see Hegarty v. De la Sierra, 2 Ir. Jur. O. S. 216. So also in action on a policy of insurance against an English Company, service will be substituted on their agent here (Kett v. Robinson, 4 Ir. C. L. R. 186).

a partner.

The Court will not substitute service on a person who has been a partner Substitution of the defendant, where the partnership has been dissolved before action of service on brought, although the cause of action accrued before dissolution, and is a partnership demand (Payne v. Ryan, 1 Ir. Jur. N. S. 317). In ordinary cases of partnership demands, however, service will be substituted on one partner for the other (Mangan v. Jeff, 12 Ir. L. R. 31; Heydon v. Hammond, 10 Ir. L. R. 268).

The Court will not substitute service on an attorney who is merely acting On law for the defendant in another action or suit (Anon. v. Aylward, 10 Ir. Jur. agent N. S. 415; Carroll v. Tuthill, 6 Ir. Jur. O. S. 244).

The cause of action may, however, be so far connected with the other matter in which the attorney is employed as to give the Court power to substitute service; as in Purser v. Luscovich, 15 Ir. C. L. R. App. 10; and see Duffy v. Cowgill, 13 Ir. L. R. 84, where, in an action for a malicious arrest under a Judge's fiat, the Court substituted service on the attorney who had acted for the defendant in the previous action.

A land agent comes within the express words of the section. Where, Land agent however, all that appeared was that the defendant was entitled to a portion of certain rents under his father's will, and that the executors were in receipt of the same, the Court refused to substitute service on the executors (M'Knight v. Macartney, 1 Ir. L. T. 102).

The Court will not substitute service on a receiver appointed by the Court Receiver. of Chancery over the defendant's property (Wallis v. Austin, 3 Ir. L. R. 258; Carroll v. Tuthill, 6 Ir. Jur. O. S. 244).

In M'Dougall v. O'Shaughnessy, Ir. R. I C. L. 86 (an action of eject- Co-trustee. ment), the Court substituted service on one trustee for his co-trustee.

In Sheridan v. Stanford, Batty, 123, service of a writ upon a sheriff was Sub-sheriff. substituted by serving his sub-sheriff, the cause of action being for an act done by the sub-sheriff.

substituted

(p) In cases where service is substituted by serving a person within the How the jurisdiction, the service on such person must be personal. Leave may, service to be however, be obtained to serve him otherwise, as in Carmichael v. Newman, effected. 3 Ir. Jur. O. S. 9, where leave was given to substitute service by transmitting copies to the defendant's father, who was his land agent, and by posting copies on the father's dwelling place; and in Hamilton v. B. & I. Marine Insurance Co. Exch. 13th April, 1869, where an order was made for substitution of service by serving the writ at the registered office of the law agent of the defendant.

The person on whom service is substituted may come in to show cause Showing against the order, and a time is limited in the order for such purpose. As cause against order. to the manner of showing cause, and how the order is made absolute, in case no cause is shown, see 133-136, G. O., 1854; and Vint v. Langtree, 1 Ir. L. T. 279. The defendant may also come in to show cause against the order; and although an appearance, before the time when the appear- Defendant ance and defence were consolidated, operated as a waiver of the objection to coming in to the jurisdiction (Forbes v. Smith, 10 Ex. 717; Staniforth v. Richmond, 13 W. R. 724), yet a defendant may come in to show cause against the order, without waiving the objection (Binet v. Picot, 4 H. & N. 365; Diamond v. Sutton, L. R. 1 Ex. 130).

Where a conditional order for substitution of service has been made, and no cause is shown against it, the time for pleading is computed from the date at which the order is made absolute.

show cause.

Time for pleading af

ter order.

Affidavit of service of process,

Affidavit of service.

Affidavits in certain cases may be

sworn before

a Consul

15 & 16 Vict.

c. 76, s. 23.

(pp) Where the defendant within six days after the substituted service tenders the sum due, together with the sum fixed for costs by 1 G. O. of 22nd Jan. 1856, the plaintiff is not entitled to the costs of the motion for leave to substitute service (Atkinson v. Gregory, 1 Ir. L. T. 157).

35. An affidavit of the service of the writ of summons and plaint in the manner herein-before prescribed, or in the manner directed by any such order for liberty to substitute service as aforesaid, shall be made and filed in the office of the pleadings assistant of the Court in which the action shall be depending, in case it shall become necessary to mark judgment by default (q).

(9) The affidavit must, in addition to the matters mentioned in the section, state the day on which the indorsement of service was made upon the writ (sect. 31, ante). It must also state, in case personal service has been effected, that the process server is acquainted with the person of the defendant whom he has served (9 G. O., 1854). And by section 99 of the Act, it is the duty of the Master of the Court, before allowing a judgment by default to be marked, to see that a proper affidavit of service has been filed.

36. Any affidavit to be used in any of the said Courts may be sworn before any Consul-General, Consul, ViceConsul, or Consular Agent for the time being appointed by Her Majesty at any foreign port or place; and every affidavit so sworn by virtue of this Act may be used and shall be admitted in evidence, saving all just exceptions, provided it purport to be signed by such Consul-General, Consul, Vice-Consul, or Consular Agent, upon proof of the official character of the person appearing to have signed the same (r): provided, that if any person shall forge the signature of any such affidavit, or shall use or tender in evidence any such affidavit with a false or counterfeit signature thereto, knowing the same to be false and counterfeit, he shall be guilty of felony, and shall, upon conviction, be liable to transportation for seven years, or to imprisonment for any term not exceeding three years, nor less than one year, with hard labour; and every person who shall be charged with committing any felony under this Act may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence may be laid and charged to have been committed, in the county or place in which he shall be apprehended or be in custody; and every accessory before or after the fact to any such offence may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence laid and charged to have

1

been committed, in any county or place in which the principal offender may be tried; provided also, that if any person shall wilfully and corruptly make a false affidavit before such Consul-General, Consul, Vice-Consul, or Consular Agent, every person so offending shall be deemed and taken to be guilty of perjury, in like manner as if such false affidavit had been made in Ireland before competent authority, and shall and may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence may be laid and charged to have been committed, in any county or place in which he shall be apprehended or be in custody, as if his offence had been actually committed in that county or place.

(r) By 18 & 19 Vict. c. 42, sect. 3, it is not necessary to give proof of the official character of the person appearing to have signed the affidavit, or of his signature thereto, where it purports to be signed by a person of the character above mentioned.

An affidavit intended to be used in any of the Superior Courts of Common Law, may be sworn in England or Scotland before the Commissioners appointed there to take affidavits, or before a Judge or other person empowered to administer oaths. In case it is sworn before a Judge, or such other person, see the 146th G. O., 1854.

Before whom an affidavit

is to be

made.

In the colonies and in foreign countries, in addition to the persons men- In the colotioned in the section, affidavits may be sworn before any person empowered nies and by the law of the country to administer oaths; but the signature of such abroad. person to the jurat, and also his authority to administer oaths, and take affidavits must be verified by an affidavit (French v. Bellew, 1 M. & S. 302; Binet v. Picot, 4 H. & N. 365), or by the certificate of a notary public (Ex parte Worsley, 2 H. Bl. 275), or, it would seem, of the British Consul, or the Consul of the foreign country (In re Barber, 2 Bing. N. C. 268; Howzelle v. Watson, 9 Ir. L. R. 40).

With respect to the filing of the summons and plaint (s):

Filing of
Plainl

37. The original or duplicate summons and plaint (t), or a Filing plaint. copy (u) thereof and of the endorsements thereon, and of the said particulars, certified by the attorney for the plaintiff to be a correct copy, shall, in order to enforce a defence thereto within the period of time in such writ mentioned, four days at least before the time for pleading thereto has expired (v), be filed with the pleadings assistant of the Court in which the action shall be depending, and such document shall be deemed to be a pleading of the plaintiff, and in lieu and stead of a declaration (w); provided, however, that no summons and plaint, or duplicate or copy, shall be filed as a pleading, unless the same shall be on parchment, and suffi

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