C. A. 1904 KISTLER V. causing permanent mental disturbance. The affidavit of the husband, in substance, stated that, when the before-mentioned Allen called, he informed him that the judgment debtor could TETTMAR. not see him as she was too unwell to see anybody; that Allen then said that he wished to serve her with an order for her examination before one of the masters of the Supreme Court, and the deponent again told him that it was impossible for him to see the judgment debtor on account of her extreme illhealth: that Allen then produced a document and a sovereign, and asked the deponent to hand the same to the judgment debtor, but the deponent informed him that he could not on any account comply with his request, as to mention or discuss matters of business with the judgment debtor would have serious results; and that Allen then left the document and the sovereign on the door-mat. The deponent further denied that at any time he went within, and mentioned the matter to the judgment debtor, and then returned and informed Allen that the judgment debtor would not see him and would make no appointment to see him at another time; and that, having been instructed by the medical man in attendance on the judgment debtor to keep all matters of business from her, he came to the conclusion that the only course was to forward the document and the sovereign to her solicitor, which he did some few days afterwards together with the letter addressed to the judgment debtor by the judgment creditor's solicitors giving notice of an appointment. Upon hearing the application to vary his former order Phillimore J. made the before-mentioned order, against which the judgment debtor now appealed. It was not denied by the counsel for the judgment debtor that she had had notice of the order for her examination. Oct. 26. Frank Mellor, for the judgment debtor. The terms of Order XLI., r. 5, require personal service of an order before a writ of attachment can be issued for disobedience of it: In re Cunningham. (1) There is no authority which shews that knowledge of the order on the part of the person sought (1) (1886) 55 L. T. 766. to be attached is sufficient in the absence of personal service. Frank Mellor, in reply, cited Mander v. Falcke. (3) Cur. adv. vult. Oct. 27. STIRLING L.J. This is an appeal from an order made by Phillimore J. in August last by which he ordered that a writ of attachment should issue against a judgment debtor, but should lie in the office for seven days, and, if by that time a sum of 25l. were paid, should continue to lie in the office until the seventh day of the present sittings. The case is a somewhat singular one. I understand that the ground upon which the learned judge proceeded in making the order for the issue of the writ of attachment was that the judgment debtor was evading service of the order for her examination, and that, in those circumstances, the objection that the order had not been personally served ought not to avail her. The question is whether the learned judge was right in the conclusion at which he arrived. In my opinion he was. In the first place I think he was right in his view of the law. on the subject appears to be Hyde v. Hyde (4) in the Court of Appeal. That case related to a writ of sequestration, and a similar objection to that taken in the present case was raised. Cotton L.J. stated the law thus: "It is true that as a general rule no order will be made for sequestration or attachment (1) (1893) 68 L. T. 213. The latest case (3) [1891] 3 Ch. 488. C. A. 1904 KISTLER v. TETTMAR. C. A. 1904 KISTLER V. ТЕТТМАВ. Stirling L.J. unless it can be shewn that there has been personal service of the order disobeyed, but there are exceptions to that rule. If it were proved, for instance, that the person was actually in Court at the time the order was made, service would be unnecessary in order to obtain process for contempt, and personal service is also dispensed with if it is shewn that the reason why there has been no personal service is that the person to be served has evaded service." That case was one of sequestration, but the learned Lord Justice laid down that law as equally applicable to attachment, and I have no doubt with perfect accuracy, because the general rule always has been that a writ of sequestration cannot be issued unless the party applying for it is in a position to obtain a writ of attachment. This being the law, the only remaining question to be considered is one of fact, namely, whether the judge was right in coming to the conclusion that the judgment debtor was evading service of the order. It seems to me that he was. It may be that, instead of leaving the copy order with the husband of the judgment debtor, as the process-server did, the better course would have been to apply for an order for substituted service, which might in my opinion have been made under Order LXVII., r. 6; but, however that may be, the question is whether the case is not brought within the exception mentioned by Cotton L.J. There is a conflict to a certain extent as to what passed between the process-server and the husband on July 18; but what appears to have impressed the learned judge, and what also impresses me greatly, is that in the two affidavits of the doctor and the husband, which were sworn at the last moment on August 11, with the view of getting the learned judge to vary his order of August 9, it is sworn that on August 11 the judgment debtor was not in a state of health which would admit of her complying with the order, but it is nowhere sworn that that state of things existed on July 18. The husband, when he states what took place between himself and Allen, who attended to serve the order, swears that he then told Allen that the judgment debtor was too ill to see him, but he nowhere says that in point of fact that was so. The other deponent, the medical man, carefully confines all his statements to the state of the judgment debtor's health at the time of making his affidavit and the impossibility of her attendance on August 12, and he does not state that at the date of the original appointment for her examination, which was nearly three weeks earlier, she was not in such a condition as to permit of her attending to be examined. Regard being had to all the circumstances of the case, it appears to me that the correct conclusion is that the judgment debtor was evading service of the order, and, that being so, we ought not to interfere with the order of the learned judge. On these grounds I think the appeal should be dismissed. MATHEW L.J. I am of the same opinion. It was argued for the judgment debtor that the rule requiring personal service of an order, before a writ of attachment can be issued for disobedience of it, admitted of no exception; and consequently that in this case no writ of attachment could issue even although the judgment debtor was well aware of the existence of the order, and was evading the service of it. This is a somewhat startling proposition, for, after all, the only object of the rule requiring personal service is that the party should know what the order was and the consequences of disobeying it. I do not think that there is any authority for this proposition, which would lead to a manifest absurdity, namely, that the Court would be rendered powerless to enforce its order if the person against whom the order was made chose to lock himself up, and so prevent personal service upon him. My brother Stirling has referred to an authority which establishes that there is no such absolute rule as is contended for; and that the general rule that there must be personal service is subject to an exception, and, where the existence of the order has been brought to the knowledge of a person who is evading personal service in the usual way, the Court can enforce its order by attachment. There remains behind another question, namely, whether, if there were any doubt about the sufficiency of the service, there is not in this case strong evidence of a waiver of personal service. On that ground also I think that C. A. 1901 KISTLER V. TETTMAR. Stirling L.J. C. A. 1904 KISTLER the appeal of the judgment debtor would have failed, but I entirely concur in the judgment of my brother Stirling. V. TETTMAR. Appeal dismissed. (1) Solicitors for judgment creditor: Hunt & Capron, for Hunt & Hunt, Romford. Solicitor for judgment debtor: W. Hubert Smith. E. L. C. A. 1904 June 22. [IN THE COURT OF APPEAL.] ABRAHAMS & CO. v. DUNLOP PNEUMATIC TYRE Practice-Action by Partners—Writ in Name of Firm-Disclosure of Partners' Names-Affidavit-Cross-examination on Affidavit—Partners when Cause of Action accrued―Issue whether particular Person was Partner—Jurisdiction to direct Issue-Order XLVIII.a, rr. 1, 2. Where an action is brought by partners in the name of their firm, and the names of the persons constituting the firm are disclosed under the provisions of Order XLVIII.a, rr. 1, 2, there is no jurisdiction to direct a cross-examination on an affidavit disclosing the names, or to order a separate issue to determine the question whether a person whose name has been disclosed was a partner at the time of the accruing of the cause of action. APPEAL of the plaintiffs from an order of Bruce J. at chambers. The action was commenced by writ, issued in the name of H. Abrahams & Co., to recover damages for breach of an agreement. The defendants, other than the Dunlop Pneumatic Tyre Company, were Components, Limited, and a notice in writing was served on their behalf upon the plaintiffs' solicitor under Order XLVIII.a, r. 2, requiring him to declare in writing the names and places of residence of all persons constituting the (1) The writ was ordered to lie in the office for a further seven days, and until the date of a fresh appoint ment for the examination of the judgment debtor to be made by the master. |