Massey and another v Heynes & Company and Schenker & Company
| Jurisdiction | England & Wales |
| Year | 1875 |
| Court | Court of Appeal |
Practice - Notice of Writ - Service out of the Jurisdiction - “Proper” Parties - Order XI., r. 1 (g).
By Order XI., r. 1, service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a judge whenever (g) “Any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction.”
In an action against defendants in London for breach of warranty of authority it appeared that they had assumed as agents for foreign principals to enter into a contract to be performed out of the jurisdiction, and that there had been a breach out of the jurisdiction, the supposed principals having repudiated the contract as being made without their authority:—
Held (affirming the judgment of the Queen's Bench Division), that the foreign principals were “proper” parties to the action within Order XI., r. 1 (g), and that service on them out of the jurisdiction of notice of the writ might be allowed.
MOTION that an order giving the plaintiffs liberty to issue a concurrent writ, and serve notice thereof abroad, together with the writ and judgment, and all other proceedings thereunder, might be set aside so far as the defendants Schenker & Co. were concerned.
It appeared that Schenker & Co., who were Austrian subjects, in business as merchants at Fiume, gave telegraphic instructions to the defendants, Heynes & Co., shipbrokers in London, to effect a charterparty, who accordingly made a charterparty with the plaintiffs, shipowners in London, which was to be performed in the Mediterranean.
Schenker & Co. afterwards repudiated the charterparty, on the ground that it was not in the form authorized by them. The plaintiffs brought the action against Heynes & Co. for breach of implied warranty of authority to effect the charterparty, and obtained an order for leave to serve notice of the writ on Schenker & Co. abroad, in order to claim against them for breach of the charterparty in the same action. Notice of the writ having been served, judgment by default was signed against Schenker & Co. An application by Schenker & Co. in the terms of the motion was refused by Denman, J., in chambers. The defendants, Schenker & Co., appealed.
F. W. Hollams, for the defendants Schenker & Co. The subsection of Order XI., r. 1, under which service out of the jurisdiction may be allowed, on which the plaintiffs rely to support the order, is sub-s. (g)F1. But it does not apply to mere alternative remedies against two defendants. The plaintiffs must shew that both defendants can be made liable in the action. The Austrian firm can, however, only be liable on the assumption that there is not a cause of action against the defendants within the jurisdiction. If the charterparty binds the Austrian firm, their London agents are not liable; on the other hand, if it was made without authority, the Austrian firm are not liable for the breach of it. They cannot be made parties to the action merely in order to obtain discovery: Wilson v. Church.F2
W. English Harrison, for the plaintiffs. The foreign firm are “proper” parties within Order XI., r. 1 (g), which is not limited to joint defendants. Either firm may be liable. The plaintiffs cannot obtain the original correspondence between the Austrian firm and their agents, on which the case depends, unless the Austrian firm is made party to the action. The decision in Wilson v. ChurchF2 was only that an officer of a corporation was improperly joined with the corporation as a defendant for the purpose of discovery, inasmuch as the discovery could be obtained by an order to interrogate him. That case, therefore, does not apply.
Hollams, in reply. The person abroad who may be served must be a proper party to “an action” properly brought against some other person within the jurisdiction. The action in this case is for breach of warranty of authority, but the Austrian firm is not a proper party to such action. There is no case on the point except Sykes v. ScholfieldF3, in which it was held that, if the party to be served is a “proper” party, he need not also be a “necessary” one. [He also argued that the judgment should be set aside and leave given to Schenker & Co. to appear and defend the action.]
1888. June 1. WILLS, J. This is an application to set aside service of notice of a writ issued in England out of the High court against two defendants, one being a firm of English shipbrokers, the other a foreign firm resident and carrying on business at Fiume, in Austria, in respect of a contract the breach of which was not in England, and as to which, therefore, the Austrian firm could not have been made defendants under Order XI., r. 1, s. (e), to an action in this country. The service of the notice of the writ must therefore be justified, if at all, by sub-s. (g) of the same order and rule, and that is the only ground on which the leave for service was...
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