29th May.
Before F. 8, A. Bourne, Esq., Acting Chief Justice.
G. H. Joves v. (1) Denestras & Freenovy, @)A. R. Leaxe.
This was the hearing in Chambers of two interlocutory summonses taken out by the defendants to show cause why the petition in this suit should not be dismissed. The facts of the ease so far as they are material to the point decided are sufficiently set forth below. After hearing Mr. A. Bidoulac, counsel for the plaintiff, and Mr. A. P. Stokes, soli defendants, the following decision was given The facts of the case are as follows On the 3rd May, 1902, n writ of summons was, issued against Debenham a partner in the defendant firm of Debenham and Freebody, and on the same day before he had been served Debenham left Shanghai for Japan. Go was therefore within the jurisdiction of the Court when the writ was issued. There is no reason to believe that he intended to evade the jurisdiction. Plaintiff having failed to serve Debenham personally obtained on Sth May, 1902, an order of substituted service on Ward, Probst & Ca., as agents of the defendant firm.
have to decide whether Debenham was within the jurisdiction for the purposes of this suit, and if so whether the substituted service on Ward, Probst " Ca. was a good service.
Tinust premise that the Court in this regard has jurisdiction only over His Majesty's subjects being within the Domivion of the Emperor of China or being within any ship or vessel at a distnco of not more than one hundred miles from the coast of China (Preamble—Order-in-Couneil of 1865).
'The most recent case I can find in point is Jay v, Budd 1808. 1 Q. B. p. 12, decided by the Court of Appeal. Here a' writ for service within the jurisdiction was issued against a defendant who was then within the jurisdiction, but who after the writ had come to his knowledge although before the writ had been legally served went out of the jurisdiction though not for the purpose of evading service. It was he'd by the Court of Appeal (Lord Halsbury L. C. and Collins L. J., Rigby L. J. dissenting) that an order for substituted service of the writ might be made the circumstances of the ease showing that it would be just to make such an order. Wilding v.\ Beam 1891, 1.Q. B. p. 100 and Fry v. Moore (1888) Q. B. D. XXTIE p. 395 were distinguished from the above case because in thee suits the defendant was out of the jurisdiction when the writ was issued (per Collins L. J. page 19).
T feel the more bound to follow the above decision because it appears from the facts of the present case that to force the plaintiff to England for his remedy against the defendant firm might well amount to a donia! of justice, while the defendants if time be given them, as it shall be, can suffer no wrong by being sued here where the breach of contract is alleged to have happened, and where the evidence is at hand.
I therefore rule that Debenham falls under the jurisdiction of the Court. This being so 256 of the Rules of Court makes the substituted service on Ward, Probst & Ca. a goyd service, they being admittedly agents of the defendant firm for some purposes.
Counsel for the defendants further applied that the petition against both of them should be dismissed under $ 39 of the Rules of Court because the owses "-f action against the defendants Debenham and Free-body and against the defendant Leake are distinct. But it was not shown that any embarrassment it to the defendants by their being joined. Leake appears merely to have been joined for purposes of discovery and he seems from his affidavit to be ready to interplead. fis name can be struck off later if that appears just.
The defendants' summonses are dis-missel. Costs to be costs in the cause, for the question of jurisdiction and of misjoinder were both proper to be raised by the defendants' counsel.
Text read from the printed page and cleaned; old type leaves the occasional error.