Fitzsimons v Skelly

• Jurisdiction: Ireland
• Judgment Date: 07 February 1896
• Date: 07 February 1896
• Court: Chancery Division (Ireland)

Fitzsimons

and

Skelly.

M.R.

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1896.

Practice — Originating summons — Leave to substitute service — Affidavit — British subject.

On an application for liberty to substitute service of an originating summons where the defendant resides out of the jurisdiction, the order will not be made unless the affidavit in support of the application states that the defendant is a British subject.

Motion for an order to substitute service of an originating summons on the defendant who resided at 316, West 119th-street, New York, by serving his agent Mr. P. C. M'Gough, solicitor, of Dublin.

The affidavit of plaintiff's solicitor stated that the summons had been issued, and no appearance entered; that the defendant lived outside the jurisdiction, and that Mr. P. C. M'Gough acted as defendant's agent. The summons was brought to raise the amount of a charge created in favour of the plaintiff by the will of Henry Skelly, deceased, on the lands of Bigstown in the county of Meath.

W. H. Brown, in support of the application:—

[The Master of the Rolls:—There is no statement in your affidavit whether the defendant is or is not a British subject. How then can I make an order for substitution of service?]

We submit that in applications for substitution of service such a statement is unnecessary. The necessity for it arises only when it is proposed to serve a defendant out of the jurisdiction personally, in order to enable the Court to direct whether the document to be served should be a writ or a notice of the writ. The judgment of Jessel, M.R., in Fowler v. Barstow (1) is to this effect. The objection to allow substitution of service arises in a case where personal service of the writ could not legally be made—as, for instance—a writ in an action for tort...