The order made by Herring C.J. on 21st June 1957 deals with other matters besides the service of the writ but at this place these may be passed over. For a point has been reached at which it is better to turn to the question whether it was competent and proper to make the order for substituted service of the writ of summons. Primarily the question is one of jurisdiction. The action is in personam and it is transitory; and in such an action the jurisdiction of the Supreme Court of Victoria depends not in the least on subject matter but upon the amenability of the defendant to the writ expressing the Sovereign's command in right of the State of Victoria. The common law doctrine is that the writ does not run beyond the limits of the State. By the federal Service and Execution of Process Act 1901-1953, however, it may, if endorsed under that statute, be served elsewhere within the Commonwealth and its Territories, the conditions in which this may be done and the consequences being defined by the provisions of the Act. Further, by rules made under s. 139 of the Supreme Court Act 1928 replacing, but based upon, the fifth schedule of that Act and now contained in O. XI, rr. 1-5 of the Rules of the Supreme Court 1957, it is provided that in cases answering any of the descriptions in r. 1, service of the writ or of notice of the writ in any place outside Victoria may be allowed by the court or a judge. It may be that the cause of action which the plaintiffs seek to set up will fall neither within any of the paragraphs of r. 1 of O. XI nor within any of those of s. 11 of the Service and Execution of Process Act 1901-1953. If so that may explain the importance apparently attached by the parties to this appeal. For except for these extensions of the principle of the common law, it remains true that a writ issued out of the Supreme Court of Victoria does not run outside that State. And in actions in personam this must determine the jurisdiction of the court over the defendant. "The root principle of the English law about jurisdiction is that the judges stand in the place of the Sovereign in whose name they administer justice, and that therefore whoever is served with the King's writ and can be compelled consequently to submit to the decree made, is a person over whom the Courts have jurisdiction", per Viscount Haldane: John Russell & Co. Ltd. v. Cayzer, Irvine & Co. Ltd. [1] . Holmes J. regarded the principle as based upon the capacity to exert actual power. "The foundation of the jurisdiction is physical power, although in civilized times it is not necessary to maintain that power throughout proceedings properly begun, and although submission to the jurisdiction by appearance may take the place of service upon the person No doubt there may be some extension of the means of acquiring jurisdiction beyond service or appearance but the foundation should be borne in mind": McDonald v. Mabee [2] . It must be remembered that the rule of the common law was non potest quis sine brevi agere and that the original writ thus necessitated issued out of Chancery under the Great Seal in the name of the King. It was directed to the sheriff and, if a writ of summons, it required him to command the defendant to satisfy the plaintiff's claim and in default of his doing so to summon him to appear before the Justices of, for example, the Common Pleas at Westminster to show why he had not done so. It is in this that the source is to be found of our conception of the foundation of the jurisdiction of our own courts in actions in personam and to that source both Viscount Haldane and Holmes J. refer. The defendant must be amenable or answerable to the command of the writ. His amenability depended and still primarily depends upon nothing but presence within the jurisdiction. "The service of the writ, or something equivalent thereto, is absolutely essential as the foundation of the court's jurisdiction. Where a writ cannot legally be served upon a defendant the court can exercise no jurisdiction over him. In an action in personam the converse of this statement holds good, and wherever a defendant can be legally served with a writ, there the court, on service being effected has jurisdiction to entertain an action against him. Hence, in an action in personam, the rules as to the legal service of a writ define the limits of the court's jurisdiction. Now, a defendant who is in England can always, on the plaintiff's taking proper steps, be legally served with a writ. The service should be personal, but if personal service cannot be effected, the court may allow substituted or other service. In other words, the court has jurisdiction to entertain an action in personam against any defendant who is in England at the time for the service of the writ": Dicey - Conflict of Laws, 6th ed. (1949), p. 172. It will be noticed that in this passage presence within the jurisdiction at the time of service is regarded as essential. The statutory qualification or exception as to service out of the jurisdiction was of course not under the author's consideration in the foregoing passage. But what is of great importance for the purposes of the case in hand is that to insist on the presence of the defendant within the jurisdiction at the time of service is to exclude the possibility of substituted service when he is no longer within the jurisdiction. In some measure the view that the defendant must be within the jurisdiction at the time of service may depend upon what is conceived to amount to the exercise of the sovereign authority, the issue of the command or the communication of the command. Of this two views have been expressed. "The mere issue of a writ", wrote F. T. Piggott in his Service Out of the Jurisdiction (1892) at page lvii, "is not of itself an act of jurisdiction: it is but an inchoate command until it is served on the person to whom it is addressed. The service perfects the exercise of jurisdiction. And therefore the mere issue of an ordinary eight-day writ directed to a person abroad, is not of itself an exercise of jurisdiction: and as it cannot be served abroad it is inoperative. It may be however served should the person afterwards come within the jurisdiction. And moreover the issue of this writ can never be perfected by service abroad. Its issue therefore does not even pave the way for the exercise of extraterritorial jurisdiction." The other view is taken by Dr. Schmitthoff in his book The English Conflict of Laws, 3rd ed. (1954), p. 428: "The decisive moment when the defendant must be within the jurisdiction is that of the issue and not of the service of the writ. If after the issue of the writ the defendant has left the jurisdiction (even though not for the purpose of evading service) so that personal service cannot be effected, an order for substituted service may be granted." In Jay v. Budd [1] , a case cited by Dr. Schmitthoff for his proposition, the defendant had been irregularly served with the writ before he sailed from England, irregularly because the original writ was not produced at his request when he was given a copy, and an order for substituted service was upheld. Collins L.J. said (2): "I agree that, if the writ had not been issued until after the defendant had left this country, the only way in which the defendant could have been properly served would have been by proceeding under the practice as to writs for service out of the jurisdiction. In Wilding v. Bean [1] the decision was that, where the defendant is out of the jurisdiction when the writ issues, the plaintiff cannot have the benefit of the provision for substituted service with regard to a writ which is not for service out of the jurisdiction; he can only get that benefit by proceeding under the rules providing for the issue of writs for service out of the jurisdiction" [2] . The decision is based upon the fact that the writ had been issued, a fact which Collins L.J. inferred; and, although no particular point is made of it, the further fact referred to by Collins L.J. that the command of the writ had been communicated to the defendant, though not by formal or regular service of the writ. Lord Halsbury, who with Collins L.J. formed the majority, emphasised the latter fact but placed his decision on general grounds going to the justice of ordering substituted service in the particular circumstances of the case. Rigby L.J. dissented. In Fry v. Moore [3] an eight-day writ of summons, that is to say a writ for service within the jurisdiction, was issued against a defendant who was not within the jurisdiction. An order for substituted service within the jurisdiction was obtained. It was held in the Court of Appeal that this was bad and the order and the proceedings under it were, but for waiver on the part of the defendant, liable to be set aside. This decision was placed specifically upon the ground that there cannot be substituted service of a writ which could not at the time it was issued be served personally. Were it otherwise the strict conditions regulating and limiting service out of the jurisdiction upon defendants abroad would be ineffective; for they could be avoided by obtaining an order for substituted service within the jurisdiction. Upon this consideration Lindley L.J. relied: see [4] . The same thing had been decided in Field v. Bennett [5] and in Hillyard v. Smyth [6] . There was however a reported decision of the Court of Appeal which seems to ignore not only the consideration mentioned but the principle that if a writ could not be served personally at the time when it was issued there cannot be substituted service. The case was Watt v. Barnett [7] . The facts must be collected from the various reports but briefly they were that a writ for service within the jurisdiction was issued against five defendants in an action of tort, the alleged tort being committed apparently within the jurisdiction. Of the five defendants one had taken up his permanent residence in France before the cause of action arose. At the time of the issue of the writ he was abroad and remained abroad. The writ was issued on 1st September 1876 and it would seem that at that date he had resided in France from at latest the beginning of 1875 (see [1] ) where it is said that he swore he had been permanently resident in France for the last three years and 14th April 1875 is mentioned as a date at which he was residing there. An order was made for substituted service of the writ upon the absent defendant by serving it upon solicitors in England acting for the defendants or at all events for that defendant in connexion with another action by a different plaintiff. The solicitors neither accepted the documents nor informed the defendant, but they protested that in obtaining the order the plaintiff had not disclosed that the defendant was abroad. Another order was accordingly obtained by the plaintiffs who abandoned the old one. It seems certain that in applying for it they disclosed that the defendant was abroad. The defendant was not informed of the proceedings and was unaware of them until he saw a report of the trial at which the other defendants appeared or some of them. Interlocutory judgment had been entered against him in default of appearance. The question before the Divisional Court and the Court of Appeal was whether he was entitled unconditionally to have the judgment set aside. Both Courts held that he was not so entitled. The judgment was however set aside on terms so that he might come in and defend on the merits. The decision was that the order for substituted service was regularly made. It is to be noted however that Cotton L.J. said that the court need not consider whether in the circumstances it could have been discharged which seems to mean that on the facts that came to light it might have been set aside. There is nothing in any of the reports to suggest that when the writ was issued the defendant happened to be visiting England or that at any time afterwards the defendant visited England and came within the jurisdiction for however short a time. He had not left the jurisdiction to avoid service: no question of that sort arose. Order IX, r. 2 of the Rules of 1875 (which are to be found in vol. 10 of the L.R. Statutes, at pp. 778 et seqq.) was in the same form as at present, although Order IX, r. 1 was very different, if that matters. The decision may mean no more than that on the materials upon which the order for substituted service was made it was regular and that was enough, but that is a somewhat difficult view. Unless however that is the explanation the decision must mean that substituted service within the jurisdiction of an eight-day writ may be ordered upon a defendant who resided beyond the jurisdiction at the issue of the writ and has not come within the jurisdiction then or thereafter. It seems impossible to reconcile such a decision with principle or with subsequent authority. The judgment of Mellor J. as reported in the Law Reports contains a statement that the object of r. 2 of O. IX was to obviate the difficulties to which a plaintiff might be exposed by reason of the defendant's going abroad and keeping abroad and its being impossible to effect personal service and to prevent the plaintiff's right being entirely defeated by reason of such difficulties. The passage, which does not accord with the other reports of the judgment, seems sometimes to have been read as if it referred to going abroad to evade or prevent service. But it is difficult to believe that that was its intended meaning. For the defendant did not go abroad for any such purpose. He resided abroad. Jessel M.R. expressed his concurrence in the opinion of Mellor J. but according to what version of his judgment one cannot be sure. It perhaps should be noted that reliance was placed by counsel on the principles governing substituted service in Chancery as formulated in Hope v. Hope [1] , principles which would perhaps support the decision. But it is now clear that these principles have been superseded: In re Busfield; Whaley v. Busfield [2] ; In re Eager; Eager v. Johnstone [3] .