Mander v Falcke
| Jurisdiction | England & Wales |
| Date | 1891 |
| Year | 1891 |
| Court | Chancery Division |
Practice - Motion to Commit - Irregularity - Substituted Service - Service on Solicitor - Personal Service - Motion to Attach - Appearance of Defendant Waiver of Objection to Motion.
Notice of motion to commit a defendant must be served upon him personally, if practicable, service upon his solicitor being insufficient; and the Court will not make an order for substituted service until it is satisfied that every endeavour has been made to effect personal service. Mere knowledge on the part of the defendant of the plaintiff's intention to move to commit does not dispense with the necessity of endeavouring to effect personal service; and the appearance of the defendant upon the motion is not a waiver of any objection on his part on the ground either of want of personal service or of any irregularity.
THIS was a motion on behalf of the Plaintiffs to commit the Defendant, George Edward Hinde, to Holloway Prison for alleged breaches of an order made by Mr. Justice Kekewich on the 8th of May, 1891, and of the order of the Court of Appeal made on the 3rd of June, 1891, affirming that orderF1. The notice of motion was dated the 6th and given for the 10th of July, 1891.
On the motion being opened, a preliminary objection was taken on behalf of the Defendant, G. E. Hinde, that no order could be made upon it, on the ground that the Defendant had not been personally served with the notice of motion, or that, if there had been personal service, it was irregular, there not having been “two clear days” between the service and the day fixed for hearing the motion, as required by the Rules of Supreme Court, 1883, Order LII., r. 5. From the affidavits in support of the motion it appeared that on the 6th of July, 1891, the Plaintiffs' solicitor served the Defendant's solicitor with the copies of the notice of motion and affidavits; that subsequently attempts were made to serve the Defendant personally, but without success, until the 9th of July — that is, the day before that on which the motion was to be heard — when the Plaintiffs' solicitor succeeded in effecting personal service.
The Plaintiffs charged the Defendant with having adopted various means to evade service.
Oswald, for the Defendant G. E. Hinde, in support of the preliminary objection:—
First, the service of the notice of motion on the Defendant's solicitor was insufficient. It is the settled rule of practice that a notice of motion to commit must be served upon the defendant personally: Ellerton v. ThirskF2; Angerstein v. HuntF3; Hope v. CarnegieF4; Nelson v. WorssamF5. And in Nelson v. Worssam it was held that the appearance of the defendant on the motion was not a waiver of the objection that he had not been served personally. The statement in the “Annual Practice,” 1890–1F6, that appearance is a waiver, is erroneous, and Harvey v. HallF7, which is there referred to as the authority for that proposition, in no way supports it. Although the distinction between attachment and committal has been for most purposes abolished — Callow v. YoungF8 — yet the practice appears to be that a notice of motion for attachment may be served on the defendant's solicitor, but that a notice of motion for committal must be served on the defendant personally. In Callow v. Young, in which I was counsel, the notice of...
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