defendant who appears in Court, and does not challenge the jurisdiction for sufficient grounds apparent upon the record. * 387 * But if those grounds are apparent, and the defendant appears for the purpose of demurring to the jurisdiction, the same reasons that would be effective for discharging the order of service are equally available for the allowance of the demurrer; and first, I think, it plainly appears upon the face of the bill itself, that all the demurring defendants were, at the time of filing the bill, resident in Scotland, out of the jurisdiction of this Court, and where it must be taken they still reside; and, secondly, the origin of the right to sue is a trust-deed, or contract made in Scotland in the Scotch form, the trusts of which the bill seeks to have administered, and the construction of which, as well as the extent and nature of the rights and liabilities it creates, must be ascertained and determined wholly by the law of Scotland. The principal part of the property to which this deed relates is real estate situate in Scotland, the right to which this suit seeks to determine; and, further, to have a forum concursûs set up in this Court, to which all the creditors of the Scotch company shall resort, obliging them to quit the Courts of the country where they reside, and by the laws of which their rights must be determined, and to bring their rights and claims to the bar of a foreign tribunal. The law by which every question in the cause would fall to be determined in Scotch law, of which this Court knows nothing, save as it may be informed of it by the testimony of witnesses, and acting on the principles of the recent Act of 24 Vict. c. 11, it may have to make frequent references to the Courts of Scotland, to whom the whole subject naturally belongs, and by whom it may be conveniently determined. * 388 It is scarcely possible to imagine any combination of circumstances in which, more than in this case, this Court would be forbidden to exercise jurisdiction by every principle of law as well as every consideration of expediency. By the Common Law Procedure Act, authority is not given to serve parties who are resident in Scotland or Ireland, and for the plain reason, that in such cases the plaintiff may resort to the Courts of those countries, but this bill is framed on the very opposite of the established rule, "actor sequitur forum rei." Every decree or order which the Court might make must be carried to Scotland to be enforced, and have practical operation given to it, but the Courts of that country could not be required to be auxiliary to any such purpose, or in any manner to recognize the judgment of this tribunal. I am, therefore, bound by every consideration to give no aid to the plaintiff in this suit. I concur in the decision of the Master of the Rolls, and dismiss this appeal with costs. *FOLEY v. MAILLARDET. 1864. January 29. Before the Lord Chancellor Lord WESTBURY. * 389 The language of the 7th rule of the 10th of the Consolidated Orders purporting to authorize the Court to order the service of a copy of a bill upon a defendant in any suit" out of the jurisdiction, is in excess of the statutory authority under which the orders were made, and the operation of the rule must be confined to suits concerning lands, stock, or shares within the Statutes 2 Will. 4, c. 33, and 4 & 5 Will. 4, c. 82.1 Where the plaintiff had introduced into his bill statements as to the subject of the suit, bringing it within the last-mentioned statutes, and the defendant, on an application to discharge an order for service abroad, had filed an affidavit to disprove the statements: Held, that the affidavit which had been rejected in the Court below ought to be received. THIS was an appeal from a decision of the Vice-Chancellor STUART, refusing to discharge an order made on the 5th of December, 1863, in a legatee's suit, for service in Scotland of a copy of the bill and interrogatories upon the appellant, who, at the time of the institution of the suit, was the sole legal personal representative of the testatrix in England, but permanently resident in Scotland. The bill alleged that the appellant had in her possession, or under her control, divers large balances or sums of money, and also divers parliamentary or other stocks or funds, and also divers real and personal securities, belonging to or arising from the personal estate of the testatrix, and far more than sufficient for the satisfaction of the claim of the respondent in the suit; and that the appellant had also in her possession or under her control to a 1 See Cookney v. Anderson, ante, 365, note (1). large amount assets of her late husband, whose legal personal representative in England, and also in Scotland, the bill alleged her to be; and by whom, conjointly with the appellant, the bill further alleged the assets of the testatrix, to a large amount, to have been from time to time received. * The appellant having been served with the bill and *390 interrogatories out of the jurisdiction in pursuance of the order of the 5th of December, 1863, on the 5th of January, 1864, obtained, in accordance with the dictum of the Lord Justice TURNER, in Maclean v. Dawson, (a) an order enabling her to enter and accordingly entered with the registrar a conditional appearance to the bill; and having filed an affidavit, denying, with respect to the estates of the testatrix and of the deponent's late husband, and with respect to the deponent herself, that the suit concerned any lands, tenements, or hereditaments, or any charge, lien, judgment, or encumbrance thereon, or any money vested in any government or other public stocks, or public shares in public companies or concerns, or the dividends or produce thereof, within the provisions of the Statutes 2 Will. 4, c. 33, and 4 & 5 Will. 4, c. 82, (b) moved on the 11th of January, 1864, before the ViceChancellor, that the order of the 5th of December, 1863, might be discharged, and that the appellant's costs of the application, and consequent thereon, and also such costs as had been occasioned to her by reason of such order having been obtained and served upon her, might be taxed and paid by the respondent to the appellant. The Vice-Chancellor declined to admit the appellant's affidavit, and refused the motion, and from this decision the present motion was made by way of appeal. Mr. Graham Hastings, for the appellant. Cookney v. Anderson, (c) shows that the 7th rule of the 10th of the Consoli*391 dated Orders applies only to cases within the Statutes 2 Will. 4, c. 33, and 4 & 5 Will. 4, c. 82; and, doubtless, the allegations in this bill were framed with the object of showing, that the present case was one within that category. Whether, however, that was or was not the object of the introduction of those alle (b) Stated above, p. 377, note. (a) 4 De G. & J. 150, 155. (c) Supra, p. 365. The material parts of the statutes and orders referred to in the present case will be found stated in the notes to that case. gations, not only are they, as they stand, insufficient in themselves, but their truth is disproved by the appellant's affidavit, which, if admissible, reduces the case within the authority of Cookney v. Anderson, and renders it one in which no order for service out of the jurisdiction ought to have been granted. The question, therefore, is whether or not that affidavit is admissible. The ViceChancellor thought it was not. I submit, however, that it is, and that its admissibility is at once settled by established practice: Davidson v. The Marchioness of Hastings, (a) Whitmore v. Ryan, (b) Innes v. Mitchell, (c) Maclean v. Dawson; (d) and in accordance with general convenience. The analogous practice on motions to dissolve injunctions obtained ex parte is also in favour of the admissibility of this affidavit; and if it be admitted, Whitmore v. Ryan, which will probably be relied upon on the other side, is in reality no authority upon the present case; being as it was a decision upon the 33d of the General Orders of May, 1845, which were made within the period of five years from the passing of the Statute 4 & 5 Vict. c. 52, and were not objected to by Parliament within thirty-six days after they were laid before it; and which, therefore, acquired by virtue of that statute, and that of 3 & 4 Vict. c. 92, the force of an Act of Parliament. The present case arises under the Consolidated Orders now in force, to which, as made after the expiration of the period of five years mentioned in the statutes just referred to, and not under the authority of either of them, no such force can be attributed. * 392 Mr. Prendergast, for the respondent. Until the decision in Cookney v. Anderson, the practice of the Court was considered as settled, by a series of decisions, beginning with that in Whitmore v. Ryan. In Whitmore v. Ryan,. every argument was advanced to induce the Court to curtail the exercise of the jurisdiction in question, but the Vice-Chancellor, without hearing the other side on the question of jurisdiction, held, that the power, although discretionary, was one which might be exercised in any case whatever. The 7th rule of the 10th of the Consolidated Orders, the language of which, with such alteration only as is necessary to adapt the 33d Order of May, 1845, to the altered practice, is verbatim the same as that of the last-mentioned order, has not hitherto been (a) 2 Keen, 509. (b) 4 Hare, 612. (c) 1 De G. & J. 423. considered as introducing any alteration in principle. The Consolidated Orders were drawn up under the authority of the Statute, 15 & 16 Vict. c. 86, § 63; and Parliament not having interfered in the manner prescribed by the 64th section of the last-mentioned Act, these orders have acquired the validity of an Act of Parliament. The Consolidated Orders, therefore, stand on the same footing as the Orders of the 8th of May, 1845, and Whitmore v. Ryan, is a decision expressly in point, and in the respondent's favour. The case is analogous to those of by-laws made under the post-office or railway Acts. In The Official Manager of the National Provident and Investment Association v. Car*393 stairs, (a) the bill did not explicitly show that the defendant was possessed of property within the provisions of the Statutes 2 Will. 4, c. 33, or 4 & 5 Will. 4, c. 82; and the defect was made good by an affidavit on the part of the plaintiff, showing the existence of shares in England. In the present case, the defect does not exist. The allegations in the bill answer the same purpose as the affidavit did in the case cited. * [THE LORD CHANCELLOR. — There are parliamentary stocks and funds in Scotland, and the allegations do not necessarily show the existence of such stocks or funds in England. Even, if they did, a false statement made in order to found the jurisdiction may be disproved by affidavit.] If the allegations are insufficient, the question reduces itself to this: whether or not, in their absence, the Court had jurisdiction to make the Order of the 5th of December, 1863. I submit that it had. Steele v. Stuart (b) is a clear decision of the ViceChancellor WOOD, that Cookney v. Anderson has not necessarily overruled Whitmore v. Ryan; and his Honor expresses his opinion, that the Orders of May, 1845 not having been objected to by Parliament, had thus obtained its sanction. [THE LORD CHANCELLOR. That sanction could only have been to orders made in pursuance of statutory powers. So far as the orders may have been in excess of the statutory powers, they do not become binding merely because Parliament has not interfered |