The Attorney-General (At the Relation of the Rev. J. Johnston) v The Drapers' Company and Others

• Jurisdiction: Ireland
• Judgment Date: 01 January 1894
• Date: 01 January 1894
• Docket Number: (1892. No. 496.)
• Court: King's Bench Division (Ireland)

The Attorney-General (at the Relation of The Rev. J. Johnston)

and

The Drapers' Company and Others (1).

Appeal.

(1892. No. 496.)

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 THEREPROM IN

THE COURT OF APPEAL.

1894.

Practice — Service of writ out of the jurisdiction — Gen. Ord. XI., R. S. C. (Ireland), 1891 — Jurisdiction.

The defendants had their offices in London, and the writ in the action claimed:—

1. A declaration that the defendants were trustees of certain lands in the county of Londonderry for the general objects of the Plantation of Ulster, and that a scheme should be settled for the application of the rents;

2. A declaration that the defendant Companies, in so far as they had sold portion of the estates conveyed to them by the Irish Society, had committed a breach of trust by such sale; and

3. An inquiry as to how the defendants had disposed of the woods of G. and K.:—

Held (affirming the decision of Porter, M.R.), that the case came within sub-section b of Gen. Ord. XI. of R. S. C. (Ireland), 1891, and that service of the writ out of the jurisdiction should be allowed.

Held, by Fitz Gibbon, L. J., that the case also came within sub-section d.

This was an action brought by the Attorney-General, at the relation of the Rev. John Johnston, Presbyterian Minister of Killaloe, in the county of Londonderry, against the Drapers' Company, the Tallow Chandlers' Company, the Skinners' Company, the Stationers' Company, the White Bakers' Company, the Girdlers' Company, the Salters' Company, the Dyers' Company, the Saddlers' Company, the Cutlers' Company, the Joiners', Ceilers', and Carvers' Company, and the Woolmen's Company.

The plaintiff's claim was for a declaration that the defendant Companies are' trustees of certain lands and premises in the county of Londonderry, for the public and general objects of the Plantation of Ulster, and that the said objects still remaining to be provided for may be ascertained and declared, and a

proper scheme settled for the due application for the future of the income of the said estates, and that the defendants may be ordered to apply the said lands, and the rents and profits thereof, upon and for the objects of the Plantation of Ulster:

That it may be declared that the defendant Companies, in so far as they have sold portion of the estates, conveyed to them by the Irish Society, committed a breach of trust by such sale, and that the said Companies may be ordered to account for the respective purchase-moneys received by them on such sales, and that the plaintiff may have against the defendant Companies, in respect of the said moneys, the same relief as is claimed in respect of the unsold estates, and that the said purchase-moneys may be applied under such scheme as may be settled upon and for the objects of the Plantation of Ulster:

That an inquiry may be had as to how the defendants or any of them, have disposed of the woods of Glenkonkeine and Killetra, and if it be found that the said defendants, or any of them, have improperly disposed the same, that the said defendant or defendants so found guilty of a breach of trust, may be decreed to account for such breach, and that an enquiry be had of all moneys received by such defendants or any of them, and that such defendants may account for such moneys as may be found to have been misapplied:

That the defendants may be decreed to account for all the rents and profits, income, dividends, and interest received by them respectively out of the said lands, hereditaments, and premises.

On the 9th June, 1892, an order was made by the Master of the Rolls for liberty to issue the writ, and serve it on the defendants in London, where the offices of all the defendants were, they being incorporated by English charters, and having all their documents in London.

The Drapers' Company, the Salters' Company, and the Skinners' Company, were three of the original principal Companies, among whom the Irish Society had divided portion of their lands at the time of the Plantation of Ulster. The other defendants were associated with these three Companies, but the action was discontinued against the Tallow Chandlers' Company, the Stationers' Company, the White Bakers' Company, the Dyers' Company, the Saddlers' Company, and the Woolmen. On the 9th November, the Drapers' Company, the Skinners' Company, the Girdlers' Company, the Salters' Company, the Cutlers' Company, and the Joiners' Company applied to the Master of the Rolls for an order that the order of the 9th June, 1892, might be discharged and that the service on the defendants might be set aside, on the ground that, having regard to the amounts and values of the several properties affected by the action, the greater portion of which was situate in England, it would be more convenient to have the questions involved in the action tried in England, and on the further ground that the relief claimed by the writ of summons was not confined to lands and hereditaments within the jurisdiction, but extends to other property not coming within Order XI. Rule 1. Affidavits were filed on behalf of the Drapers' Company, the Salters' Company, and the Skinners' Company, to prove that the greater portion of the lands which they held had been sold or were under agreement for sale. The Drapers' Company stated that about one-twentieth in value of their lands remained unsold, the Skinners' Company stated that about one-sixth of their lands were unsold, and the Salters' Company about one-hundreth of theirs. It appeared that portion of the estates had been sold to the tenants under the Purchase of Land (Ireland) Act, 1885, and the guarantee deposits would become payable to the vendors in 1905 and 1907.

On the 9th December, 1892, the Master of the Rolls made an order refusing the application (1).

From that order the defendants appealed.

R. W. L.

Serjeant Jellett, Q.C., The Right Son. J. Atkinson, Q.C., and Charles O'Connor, for the appellants:—

The action seeks for two things—(1) to attach a trust on the lands, and (2) to follow the trust funds into our hands.

One of the objects of the Judicature Act was to assimilate the practice on both sides of the hall; it is necessary, therefore, to see-what the practice was as to service of writs out of the jurisdiction prior to the Judicature Act. Before the 2 & 3 Wm. 4, c. 33, there was no power to serve a writ out of the jurisdiction, but by that Act power was given in the case of lands situate in Ireland to effect service out of the jurisdiction. By the sub-sequent statute, 4 & 5 Wm. 4, c. 82, that power was extended to the case of charges, liens, or incumbrances on lands, or to suits concerning money in Government or other stock, or shares in public companies. That was the entire jurisdiction of Courts of Equity. The Courts of Common Law had not any similar power, but by the Common Law Procedure Act of 1853 there was conferred a power to substitute service of a writ on an agent within the jurisdiction, though not to serve a writ out of the jurisdiction; and that power continued down to the passing of the Judicature Act. By Gen. Ord. XXX., under the Chancery Act of 1867, where a defendant was out of the jurisdiction, the Court might order a copy of the bill to be served on him in such place. That order was copied from the corresponding English Order, under the Act of 1852: Cons. Ord. X., It. 7. In Cookney v. Anderson (1), Lord Westbury held that that applied only to cases which came within 2 & 3 Wm, 4, c. 33, and that it would be ultra vires to extend it further: Foley v. Maillardet (2) is to the same effect. These cases were overruled in Drummond v. Drummond (3).

Then came the Judicature Act, and Gen. Ord. X. allowed service

of a writ out of the jurisdiction “whenever the whole or any part of the subject-matter of the action is land or stock or other property situate within the jurisdiction.” That was found to be too wide in its terms, and accordingly Gen. Ord. XI., of the rules of 1891 was substituted for it; but it leaves out the words “or any part of the subject-matter is land or stock.”

The first case then, where service is allowed out of the jurisdiction, is whenever the whole subject-matter of the suit is land within the jurisdiction. That is not the case here. By the 2nd paragraph of the writ relief is claimed in respect of a breach of trust, in having sold lands, and accounts are sought of the purchase-moneys. Then conies sub-sect, (b):—“Any act, deed, will, contract, obligation, or liability affecting land or hereditaments situate within the jurisdiction is sought to be construed, rectified, set aside, or enforced in the action.” This case does not come within that sub-section. Substitution of service of a writ on an agent within the jurisdiction will only be granted in those cases in which service out of the jurisdiction may be allowed: Re Edgar (1); Whaley v. Busfield (2); O'Connor v. Star Newspaper Company (3). The case is not within sub-sect, (a), because the whole subject-matter is not land, nor within (c), because the defendants are not ordinarily resident

within the jurisdiction; unless, therefore, it is within (b) or (d), the plaintiff's case fails. We submit it is not within (d), because some of the property is not within the jurisdiction. The plaintiff cannot attract the jurisdiction, because a small part of the subject-matter-is land within the jurisdiction: Thomas v. Hamilton (1). This action is not within sub-sect, (b) because a suit to be within that sub-sect, must be one in which the contract, obligation, or liability is sought to be enforced so far only as relates to land within the jurisdiction: Agnew v. Usher (2), Kaye v. Sutherland (3). Now here almost all the lands have been sold: the Drapers' Company have sold all their lands except about 1080 acres, and of that 782 acres are under agreement for sale, leaving about 300 acres...