Maclean v Dawson
| Jurisdiction | England & Wales |
| Judgment Date | 01 July 1859 |
| Date | 01 July 1859 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 58
BEFORE THE LORDS JUSTICES.
[1BO] maclean v. dawson. Before the Lords Justices. May 4, 1859. The Court has a discretion as to whether it will order service of copy bill out of the jurisdiction, under the 33d Order of May 1845 (Consol. Ord. 1860, x. 6). Course to be taken by a Defendant who considers that an order for such service upon him ought not to have been made. M. filed a bill to set aside for fraud a purchase from her by J. D., deceased, of shares in a Scotch trading company. J. D. had died domiciled in Scotland, and leaving no property in England. A., B. and C. were his executors in Scotland, but he had no personal representative according to the law of England. A. and B. were resident in Scotland, C. in England; and some of the shares in question were alleged to be standing in C.'s name. Held, by the Lord Justice Knight Bruce, affirming the decision of the Master of the Rolls, that service upon A. and B. in Scotland ought to be ordered. 4DEO. 4J. Ml. MACLEAN V. DAWSON 59 This was an application by William Davvson and Thomas Davvson, to discharge an ex parte order of the Master of the Rolls, giving the Plaintiffs leave to serve a printed copy of the bill upon them in Scotland, which order His Honour had refused to discharge. The suit was instituted by Henry Dundas Maclean and Eleanor his wife, against Henry Dawson, William Dawson and Thomas Dawson, who were the executors of Joseph Dawson, against the executors of Henry Stainton, and against the Carron Company, to set aside for fraud a purchase made by Joseph Dawson in 1839, of ten shares in the company from Mrs. Maclean as executrix of Sarah Lodge. Joseph Dawson had been the manager, and William Dawson the assistant manager of the company at Carron, near Stirling ; Stainton the manager in London. The case made by the bill was that Joseph Dawson, Stainton, and William Dawson, had conspired together to publish false accounts of the state of the company's business, for the purpose of depreciating its shares, so that they might buy them at an undervalue, and had by that means so depreciated them, that Joseph Dawson was enabled to purchase the shares in question from Mrs. Maclean at about a third of their real value. [151] Joseph Dawson died in 1850, resident and domiciled in Scotland, having made a trust disposition, by which he gave his residuary estate to the Defendants Henry Dawson, William Dawson and Thomas Dawson, and appointed them his executors. They were duly constituted executors in Scotland, but there was no legal personal representative of Joseph Dawson, according to the law of England. The Plaintiffs resided in Cumberland, Henry Dawson at Liverpool, William Dawson at Carron, and Thomas Dawson near Glasgow. The company was a Scotch company, and there was not at the time of the institution of this suit any property of Joseph Dawson in England, ft appeared from the statements in the bill that, in 18:2(5, Joseph Dawson had only ten shares in the company, but subsequently purchased seventy-one more, and at his death there were seventy standing in his name. After his death these seventy shares were divided between William Dawson, Henry Dawson and Thomas Dawson ; twenty-four being transferred to William, and twenty-three to each of the others ; and when the bill was filed, twenty-three of them were standing in the name of Henry Dawson. Stainton had died domiciled in England, leaving a will, appointing English executors, who proved it in England. The Master of the Rolls having made an ex parte order under the 33d Order of May 1845, (1) giving the Plaintiffs leave to serve William Dawson and Tho-[152]-mas Dawson in Scotland, and to serve the Carron Company in Scotland, and also at their branch office in London, William Dawson and Thomas Dawson, by leave of the Master of the Rolls, entered a conditional appearance with the registrar, and then moved to discharge the order. This application having been refused by the Master of the Bolls, was now renewed before the Lords Justices. William and Thomas Dawson, shortly after the filing of this bill, instituted in Scotland a suit of inultiple-poinding for the administration of Joseph Dawson's estate, and the settlement of all demands against it, and they called as Defenders in that suit the present Plaintiff's and others. Mr. Rolt, Mr. Follett and Mr. Cotton, for the Appellants! The Master of the Eolls treated this as a case in which he had no discretion, but the Court is not bound to give leave to serve a bill out of the jurisdiction ; it has a discretion, Whitviort v. Ryan (4 Hare, 612), and this discretion ought to be exercised here by refusing leave. In Iwn.es v. Mitchell (1 De G. & J. 423), the judgment proceeded on grounds which are wanting here. Here there are a Scotch company, Scotch executors, and Scotch property : there is no probate in England. A litigation is going on in Scotland, in which all these questions might be settled, arid a decree here would be useless, and incapable of being enforced. The subject-matter of the suit is out of the jurisdiction. The alleged fraud if in fact committed was committed in Scotland. No probate has been taken out here, nor is there any occasion to take it out, as there is no property here. Even if the executors had been resident in England, it is a question whether litigation on such a matter ought to be allowed [153] here, the Scotch Courts being the proper tribunals for deciding it. Innes v. Mitchell did not decide that where every element in dispute was foreign, the litigation might at the mere will of the Plaintiff be carried on here instead of abroad. In Whitmore v. Ryan, the Defendant was in England when the bill was filed. In dealing with an application to serve process out 60 MACLEAN -I'. DAWSON 4DEO.&J.W*. of the jurisdiction, it must be considered-1. Whether the parties are generally resident within the jurisdiction. Suppose two Frenchmen entered in France into a French contract, could one of them come over here and file a bill about it? 2. Where the property to which the suit relates is situate. Here it is all in Scotland. 3. What is the nature of the question to be decided ? Here it is a question relating to a contract entered into in Scotland, and capable of being tried there much better than here, 4, By what law the case must he decided. Here it must be decided according to Scotch law. To all this it must be added that there is a suit pending in Scotland in which this question could be tried; and if the present suit had been instituted in Scotland, it would have been stayed, and the Plaintiff's compelled to go in under the multiplepoinding suit. If this cause comes to a hearing, it will tarn out that it cannot be prosecuted against us here to any purpose; Elliott v. Lord Minto (6 Madd. 16). Substantially all the Defendants are in Scotland. Henry Dawson is a cipher in the administration of Joseph Dawson's estate; the other two, by Scotch law, forming a quorum, and being resident where the property is. Stainton's executors having proved his will in Scotland, are subject to the jurisdiction of the Scotch Courts. The Carron Company is in Scotland, has no property here, and is merely a formal Defendant, for the sake of obtaining an order upon it for a transfer [154] of the shares in its books. The bill is demurrable for want of an English personal representative of Joseph Dawson, so there is no use in its being served, whereas the proceedings in Scotland are perfectly regular. Supposing this suit to be brought to. a hearing, the decree could not be enforced, and the Court will not lend its extraordinary power to enable the Plaintiff's to get such a useless decree. Mr. Roundell Palmer and Mr. John Pearson, in support of the order. There is nothing to shew that this suit, if instituted in Scotland, would be stayed. It would be attached to the suit already pending there, but would not be stayed. It is against all principle that a suit to set aside a purchase for fraud should be stayed, because a common suit for administration of the purchaser's estate is pending. The other side say a decree here would not do us any good, but this Court assumes that its decree will be obeyed by the parties, and that if they refuse to do so, the Courts of the country in which they are will treat it as binding their rights. The Court will only look at the question, whether the Plaintiff comes with a case which it ought to entertain, and whether the Defendant is a necessary party. If these questions are answered in the affirmative, it will compel the Defendant to appear. The bill here makes out clearly that the Plaintiffs' shares were in Joseph Dawson's possession at his death, according to the principles of attribution in Pennell v. Deffell (4 De G-. M. &...
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