Mr. Wickens, for the Regent's Canal Company. The facts of the present case show on the part of the petitioners, in their mode of dealing with the various funds in Court representing portions of the estate, the exercise of a mere caprice, whereby they have, by taking the whole of the purchase-money paid in by the appellants, at a later period, it should be observed, than that paid in by the canal company-discharged the appellants from all further liability on the score of costs of reinvestment, and have left in Court part of the fund paid in by the canal company, notwithstanding their having borne the expenses of the payment, in 1856, to the tenant for life in respect of the fine paid by him. This is a hardship sufficient to take the present case out of the rule, if any, established by Ex parte The Bishop of London, and I submit that the order of the Vice-Chancellor should be upheld. THE LORD JUSTICE TURNER.-In my judgment the rule laid down in Ex parte The Bishop of London is a beneficial rule, and one upon the whole just and not to be lightly disturbed, especially as it has been adopted since it was originally laid down. There is not here any circumstance of extreme hardship to render consideration necessary whether or not the rule should The order should *361 in the present case be held inapplicable. therefore, I think, be varied accordingly. THE LORD JUSTICE KNIGHT BRUCE. I concur. [ 280 ] See next case. In the Matter of The WARDEN AND SCHOLARS OF THE HOUSE OR COLLEGE OF SCHOLARS OF MERTON, IN THE UNIVERSITY OF OXFORD; And in the Matter of The EAST KENT RAILWAY ACT, 1853; And in the Matter of The LONDON, CHATHAM, AND DOVER RAILWAY ACT, 1859; And in the Matter of The MIDLAND RAILWAY (LEICESTER AND HITCHIN) ACT, 1853; And in the Matter of The WYCOMBE RAILWAY ACTS, 1846; THE WYCOMBE RAILWAY AMENDMENT ACT, 1852; and The WYCOMBE RAILWAY EXTENSION ACT, 1857; And in the Matter of The BEDFORD AND CAMBRIDGE RAILWAY ACT, 1860; And in the Matter of the LANDS CLAUSES CONSOLIDATION ACT, 1845; And in the Matter of THE COPYHOLD ACT, 1852. 1864. February 20. Before the LORDS JUSTICES. [For marginal note see that to In re Byron's Estate, supra, p. 358.] In this case Merton College had standing in Court the following funds, arisen from investments of moneys paid in by different railway companies for lands belonging to the college, which * had been taken by them under the powers of the Lands * 362 Clauses Consolidation Act, viz. : 505l. 10s. 1d. consols, paid in by the Midland Railway Company; 2601. 38. 3d. consols, paid in by the Wycombe Railway Company; 5571. 68. 3d. consols, paid in by the Bedford and Cambridge Railway; and 2067. 178. Od. consols, paid in by the East Kent Railway Company. The last-mentioned fund was the remnant of a sum originally paid in by the East Kent Railway of about 6601. stock, a part of which had already been laid out on an investment for the college, of which the London, Chatham and Dover Railway Company, in which the East Kent Railway Company had become merged, had paid all the costs. Upon the petition of the college for the reinvestment of 13507. out of its funds then standing in Court as above mentioned, the Master of the Rolls ordered that that sum should be raised by a sale of the three first-mentioned sums of stock, and so much of the last-mentioned sum of stock as, with the money to arise by the sale of the former, and two sums of 157. 78. and 167. cash, part of 13,3717. 178. 10d. cash in the bank to the credit of, &c., would be sufficient for the purpose; and directed the costs to be dealt with in accordance with the rule laid down in Ex parte The Bishop of London. (a) The London, Chatham and Dover Railway Company ap* 363 pealed on the ground of hardship, seeking by their appeal to have the order of the Master of the Rolls varied by a direction for the sale of the whole of the 2067. 178. consols, and the application of the proceeds of such sale towards payment of the 13501.; or, in the alternative, by a direction for payment by the appellants of so much only of the costs to be paid in pursuance of the order as would be proportionate to the amount arising from the sale of the part of the 2067. 178. consols required for the purpose of completing the amount of the 13507. Mr. Hobhouse and Mr. Kekewich, appeared for the appellants; Mr. Law, for the College; Mr. Sargant, for the Midland Railway Company; Mr. W. W. Streeten, for the Wycombe Railway Company; and Mr. Speed, for the Bedford and Cambridge Railway Company. Reference was made to the terms of the 80th section of the Lands Clauses Act, and to the cases of Ex parte the Bishop of London, (a) Ex parte Christ Church, (b) In re Maryport and Carlisle Railway Act, 1855, (c) In re Byron's Estate. (d) (a) 2 De G., F. & J. 14. (c) 32 L. J. N. S. Ch. 811. THE LORD JUSTICE TURNER. It is impossible to lay down any rule which will not operate hardly sometimes. The case of Ex parte the Bishop of London has laid down the rule to be adopted in these cases, and which must be * 364 adopted as the general rule, in the absence of peculiar cir cumstances of extreme hardship to take a particular case out of the operation of such general rule. The present does not appear to me to be a case stronger than that of In re Byron's Estate; nor is there any doubt that it was for the benefit of Merton College that these reinvestments should be made in different sums and at different times. I do not see any circumstances of peculiar hardship in the present case to take it out of the scope of In re Byron's Estate, or of the Bishop of London's Case. THE LORD JUSTICE KNIGHt Bruce. I am not clear as to the order to be made in this particular case, but the Lord Justice's opinion decides it. THE LORD JUSTICE TURNER. I should have preferred that the smaller fund should have been taken first. There will be no costs of the appeal, as we are not agreed upon the order to be made. * COOKNEY v. ANDERSON. 365 1862. December 16, 17. 1863. January 16, 24. April 25. Before the Lord Chancellor Lord WESTBURY. The 7th rule of the 10th of the Consolidated Orders, empowering the Court to order the service of a copy of a bill upon a defendant "in any suit" out of the jurisdiction, applies only to suits concerning land, stock, or shares within 2 Will. 4, c. 33, and 4 & 5 Will. 4, c. 82.1 1 This decision, together with Foley v. Maillardet, post, 389, and Samuel v. Rogers, post 396, was overruled in Drummond v. Drummond, L. R. 2 Ch. Ap. 32; S. C. L. R. 2 Eq. 335. See 1 Dan. Ch. Pr. (4th Am. ed.) 449, and note (6), 451, and cases in note (4). As to the mode of serving process upon absent defendants and persons residing out of the jurisdiction of the Court, in the United States, by publication or otherwise, see 1 Dan. Ch. Pr. (4th Am. Where it appears on the face of the bill that a defendant was, at the time of the institution of the suit, resident in a foreign country, and that the suit does not relate to any of the subjects in which this Court is warranted in exercising jurisdiction against persons so resident, he may demur to the jurisdiction, although he has not moved to discharge an order for service out of the jurisdiction, but has appeared to the bill.' THIS was an appeal of the plaintiff from a decision of the Master of the Rolls, allowing a general demurrer to the bill. The bill sought the administration of the trusts of a deed for the benefit of creditors executed by a partnership carrying on business in Scotland. It is stated that the plaintiff was the executrix of a testator, named James Thomas Cookney, late of Lincoln's Inn Fields, solicitor. It set out the trust-deed, which was dated the 9th of September, 1859, and the material parts of which were the following: "We, William Lancaster, some time government inspector of mines residing at Stirling, now residing at the Portland Iron Works, near Harlford, in the country of Ayr, iron and coal master, and Alexander Bankier Freeland, some time of the city of Manchester, merchant, now residing at Treesbank, near Kilmarnock, in the county of Ayr, iron and coal master, as trustees for the copartnery of Freeland and Lancaster, carrying on business as coal and iron masters, at and near Portland aforesaid; and *366 we, the said William Lancaster and Alexander Bankier Freeland, as partners of the said company, considering that finding ourselves as copartners aforesaid unable to meet the demands against us, and to pay the debts owing by us as these became due, and being satisfied of the great disadvantage and ruinous consequences which might follow, if the operations of our works were suspended, we are desirous that the business should be continued, in the expectation that thereby our debts may be gradually cleared off, and that our works will, if necessary, be more readily disposed of as going works; and we have, at the request of our principal creditors, after named and designed, agreed to convey over the whole heritable and movable property belonged.) 457, note (2); and as to the effect of such service, see the remarks of SARGENT J., in Erickson v. Nesmith, 46 N. H. 371, 377; Spurr v. Scoville, 3 Cush. 578; Stephenson v. Davis, 56 Maine, 75, 76. 1 See 1 Dan. Ch. Pr. (4th Am. ed.) 549, 550. |