Judge that there is no convenient remedy in Scotland [or Ireland], or that although there is a concurrent remedy in Scotland [or Ireland], yet taking into consideration the comparative cost and convenience of proceedings in England or in Scotland [or Ireland] (under the provisions of the statutes establishing or regulating the Sheriffs' Courts or Small Debts Courts in Scotland or in Ireland under the Civil Bill Courts), it will be for the benefit of all parties that this action should proceed in this Court, Let the Plt be at liberty to serve the said writ, together with a copy of this order, on the Deft at &c.; And the time within which the Deft is to cause an appearance to be entered to the said writ is to be days from such service.

The words in round brackets are to be used only in actions for small demands.

7. Notice of Proceedings to be served Abroad.

UPON motion &c. by counsel for A. B. & Co., who alleged that C. D., who is to be served with notice of motion for an order directing the Comptroller-General of Patents, Designs, and Trade Marks, to proceed in due course with the above-mentioned application for registration &c., is resident at &c., Let notice of the proceedings for registration of the trade mark, No. &c., be sent by post in a registered letter to the said C. D. at &c., And let the said motion stand over until &c., in order that C. D. may appear and apply to be heard on the said motion should he think fit. Re Bancroft, &c. Trade Mark, Stirling, J., 16 Dec. 1887, A. 1809.

8. Order for Service on Infant Deft-0. 1x. 4.

UPON the application [or upon motion] &c., It is ordered that service. of the writ of summons in this action by delivering a copy thereof, together with a copy of this order, to the Deft B., who is an infant of the age of years and upwards, be deemed good service on the said infant.

9. Service effected on Infant Deft to be deemed good Service—
0. ix. 4.

age of

UPON the application [or upon motion] &c., and it appearing by the affidavit of &c. that a copy of the writ of summons in this action was, on the day of, delivered to the Deft B., who is an infant of the years and upwards, It is ordered that the service of the said writ so effected be deemed good service on the said infant Deft, and that a copy of this order be forthwith served on the said infant Deft, and the time for entering an appearance is to be eight days after such service.

10. Leave to issue Notice of Claim to be indemnified-0. xvI. 48. UPON the application of the Defts H. and E., and upon hearing the solrs for the applicants and for the Plts, and upon reading the writ

issued in this action on &c., the statement of claim and the statement of defence of the Deft F., It is ordered that the Defts H. and E. be at liberty to issue a notice claiming to be indemnified by T. and E., pursuant to O. XVI. 48, of the Rules of the Supreme Court: Fothergill v. Hankey, V.-C. M. at Chambers, 17 Dec. 1877, A. 2133.

For subsequent order allowing T. to defend the action, see inf. Chap. III., Form 3.

For order giving leave to a third party to serve notice on other persons, see Williams v. Vane, Fry, J., 28 W. R. 276, 812; and that Plt will not be ordered to pay the costs of third and fourth parties, S. C., H. L. 32 W. R. 617.

11. Substituted Service of Petition.

UPON motion &c., by counsel for A. &c. [petitioners], and upon reading &c. [evidence of grounds of application], This Court doth order that service of the petition on the day of, preferred unto this Court by the said, having the order of this Court thereon, that all parties should attend the Court on the said petition, on the day of -, by delivering a copy thereof, together with a copy of this order, to &c., at &c. [state mode of service to be adopted], be deemed good service of the said petition on C. &c. [respondents] in the petition named.

12. Petition to stand over, with Leave to amend by adding Respondent and to effect substituted Service on him.

THE petition of A. &c. standing this day in the paper for hearing, and the Petr by his counsel applying for leave to amend the said petition by adding B. as a party respondent thereto, and upon reading an affidavit of &c. [grounds of application for substituted service], This Court doth order that the said petition be amended accordingly; And it is ordered that the said petition do stand over till the day of And it is ordered that service of the said petition as so amended, by leaving a copy thereof, together with a copy of this order, with &c., at &c., be deemed good service upon the said B.

-;

13. Petition to stand over, with Leave to serve New Parties out of the Jurisdiction.

THE petition of A. &c. standing this day in the paper for hearing, and the Petr by his counsel applying for leave to amend the said petition by adding B. as a party respondent thereto, and it appearing by the affidavit of &c., filed &c., that the said B. is now resident at in the (kingdom) of --, and upon reading the said affidavit, This Court doth order that the said petition be amended accordingly; And it is ordered that the hearing thereof stand over until the day of ―.

A day must be fixed which will allow a sufficient interval before the day to which the petition is adjourned.

As to service of petition out of the jurisdiction, see notes, inf. p. 20. In Re British Imperial Co., V.-C. H., 15 May, 1877, A. 83, 5 Ch. D. 749, leave was given to serve a summons in a winding-up matter out of the jurisdiction, and a time was fixed for appearance as on the like service of a writ of summons. See also Hunter v. Brooke, V.-C. H. at Chambers, 16 Feb. 1875, A. 223.

14. Leave to serve Writ issued in the Chancery of the County Palatine of Lancaster out of the Jurisdiction of that Court-17 & 18 V. c. 82, s. 8.

UPON motion &c. by counsel for the Plt, who alleged that the Plt, on the day of, pursuant to leave granted, issued a writ of summons out of the Court of Chancery of the County Palatine of Lancaster against the Defts P., B., and C., and that the said Defts P. and B. reside at in the county of -, and that the said Deft C. resides at B. in the county of —, both of which places are out of the jurisdiction of the said Court, as by the affidavit &c. appears, and upon reading the said affidavit, This Court doth order that the Plts be at liberty to serve a copy of the said writ, together with a copy of this order, upon the said Defts P. and B. at aforesaid, and upon the said Deft C. at aforesaid, or elsewhere in England; and the time within which the said Defts are to appear to the said writ is to be eight days after service on them respectively.See Bostock v. Pearson, C. A., 29 Jan. 1879, B. 177; Thorn v. Taylor, C. A., 9 Nov. 1888, B. 1324.

Leave must first be obtained from the Vice-Chancellor of the Palatine Court to issue the writ for service ex jur.: Walker v. Dodds, 37 Ch. Div. 188.

15. Service of Order of Palatine Court out of the Jurisdiction of that Court.

UPON motion &c. by counsel for the Plt, who alleged that, by an order dated &c., made in the Chancery of the County Palatine of Lancaster, It was ordered &c., that the said A. B. resides at &c. out of the jurisdiction of the said Court, Let the Plt be at liberty to serve the said order dated &c., together with a copy of this order, upon the said A. B., at &c.—Re Grant, Wales v. Jeffreys, C. A., 23 Dec. 1886, A. 1763.

These orders, Forms 14 and 15, are obtained from the Court of Appeal under Jud. Act, 1873, s. 18 (2), by which are transferred all jurisdiction and powers of the Court of Appeal in Chancery of the County Palatine.

NOTES.

SERVICE GENERALLY.

Service must be personal, unless substituted or other service has been ordered under O. IX. 2, except in the cases mentioned in rr. 3, 6, 7, 8, and 9 of that order.

The original writ need not be produced unless demanded, but if not shown on demand, the proceedings under it may be set aside: Phillipson v. Emanuel, 56 L. T. N.S. 858.

A writ of summons, though specially indorsed, is not a pleading within O. LXIV. 11, and may be served at any hour of the day: Murray v. Stephenson, 19 Q. B. D. 60.

Under r. 3, "when husband and wife are both defendants to the notion they shall both be served, unless the Court or a Judge shall otherwise order." For order dispensing with service on a husband, soo Whitley v. Honeywell, 24 W. R. 851.

As to service by filing in default of appearance, soo inf. Chap. XII.

Service of notice of motion for leave to issue writ of attachment against a party who has not appeared, in a case where personal service is not required, may be made by filing same pursuant to 0. LXVII. 4: Re Morris, Morris v. Fowler, 44 Ch. D. 151.

In the case of change of solicitors, O. VII. 3, provides that until notice of the change is filed, and a copy served and left in chambers, the former solicitor shall be considered the solicitor of the party until the final conclusion of the cause or matter, whether in the High Court or the Court of Appeal. As to whether the authority of the solicitor on the record continues until the time for appealing has expired, quære: seo De La Pole v. Dick, 29 Ch. Div. 351.

By O. IX. 4, in case of an infant Deft, service on the father or guardian, or, if none, upon the person with whom the infant resides, or under whoso care he is, is, unless the Court or a Judge otherwise orders, to be deemed good service; provided that the Court or Judge may order that servico mado or to be made on the infant shall be deemed good. As to service on lunatic or non compos, see O. IX. 5, which rule applies to an admon action commenced by originating summons: Re Pepper, P. v. P., 32 W. R. 765; 53 L. J. Ch. 1054; 50 L. T. N.S. 580.

When, as in urgent cases, it is desired to serve notice of motion on a Deft before appearance the leave of the Court must be obtained. No order need be drawn up giving this leave, but the initials of the registrar in Court to the indorsement on the brief will be sufficient to show that leave has been obtained.

SERVICE ON PARTNERS.

By O. XLVIIIA. 5, where persons are sued as partners in the name of their firm under r. 1, "the writ shall be served either upon any one or more of the partners, or at the principal place within the jurisdiction of the business of the partnership, upon any person having, at the time of service, the control or management of the partnership business there; and, subject to these rules, such service shall be deemed good service upon the firm so sued, whether any of the members thereof are out of the jurisdiction or not, and no leave to issue a writ against them shall be necessary; provided that in the case of a co-partnership which has been dissolved to the knowledge of the Plt before the commencement of the action, the writ of summons shall be served upon every person within the jurisdiction sought to be made liable."

By r. 4, "where a writ is issued against a firm, and is served as directed by r. 3, every person upon whom it is served shall be informed, by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership busiroma, or in both characters. In default of such notice, the person served shall be deemed to be served as a partner."

If the person to be served is a lunatic or of unsound mind, service should be under O. IX. 5: Fore Street Warehouse Co. v. Durrant, 10 Q. B. D. 471. By O. IX. 8, in the absence of any statutory provision regulating service of process, every writ of summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of such corporation. The rule further provides as to service on the inhabitants of a hundred, county of city, or town, or franchise,

liberty, city, town, or place not being part of a hundred, or other like district. But where statutory provision is made for service on any corporation, or body corporate or incorporate, the writ is to be served as provided by the statute.

A foreign corporation, carrying on business in this country, has (as distinguished from a private partnership, see Russell v. Cambefort, 23 Q. B. Div. 526) a legal existence here, and may be served in the same manner as an English corporation aggregate: Haggin v. Comptoir D'Escompte de Paris, 23 Q. B. Div. 519; Newby v. Von Oppen, L. R. 7 Q. B. 293. Thus service on the head officer at the English place of business of such a corporation, where a principal part of their business is carried on, is good within the rule: Ibid.; secus, where the corporation has no office in this country, but merely an agent: Nutter v. Messageries Maritimes, 54 L. J. Q. B. 527; and see Jones v. Scottish Accident Insurance Co., 17 Q. B. D. 421; where, however, the Companies Act, 1862 (25 & 26 V. c. 89), applied, as in the case of a limited co. having its registered office in Scotland, service at the registered office was necessary: Watkins v. Scottish Imperial Insurance Co., 23 Q. B. D. 285; and see Wood v. Anderston Foundry Co., 36 W. R. 918.

Where a special contract was entered into between an English and a foreign co., whereby an agent in London was specially appointed to accept service of any process arising under the contract, service according to the contract, though not a service within the rules, was held good: Tharsis Sulphur, &c. Co. v. Société des Metaux, 58 L. J. Q. B. 435; 60 L. T. N.S. 924; 38 W. R. 78; and generally as to a contract to accept service of a writ, see S. C., and Copin v. Adamson, 1 Ex. Div. 17, 19; Vallee v. Dumergue, 4 Exch. Rep. 290.

A foreign Sovereign or State cannot be served with a writ or other process of our Courts: Strousberg v. Republic of Costa Rica, 29 W. R. 125; and see Sloman v. Government of New Zealand, 1 C. P. Div. 563.

Where judgment by default against a firm was duly signed, a partner who had appeared subsequently, but within eight days after service of the writ on him, was entitled to have the judgment set aside: Alden v. Beckley, 25 Q. B. D. 543.

SUBSTITUTED SERVICE.

By O. IX. 2, if it appear to the Court or a Judge that the Plt is from any cause unable to effect prompt personal service, the Court may make such order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise, as may seem just. Every application for such substituted service must be supported by an affidavit setting forth the grounds upon which the application is made: O. x. Such applications are to be brought before the Judge in person: O. LV. 15.

When substituted service is effected, the order for such service must be produced. If service is by post, the copy writ and order are (unless the order otherwise direct) to be deemed to be served on the day following the day on which a prepaid letter containing the copies shall have been posted: P. M. R. 17.

The rule must not be resorted to as a mode of evading the rules as to service out of the jurisdiction: Re Urquhart, sup.; Fry v. Moore, 23 Q. B. Div. 395. An order for substituted service of a writ issued in general form without leave against a person who was out of the jurisdiction, was held not a nullity, but an irregularity which might be waived by conduct of Deft: Wilding v. Bean, (1891) 1 Q. B. (C. A.) 100, following Fry v. Moore, 23 Q. B. Div. 395; citing Field v. Bennett, 56 L. J. Q. B. 89, and Hillyard v. Smyth, 36 W. R. 7. Substituted service will not be ordered unless reasonable ground is shown for supposing that it will come to the notice of the person to be served: Furber v. King, 29 W. R. 535; Re Slade, S. v. Hulme, 30 W. R. 28; and can only be directed when there is some person or body corporate on whom there could be original service: Sloman v. New Zealand Government, 1 C. P. Div. 563.

The Court of Appeal has jurisdiction to order substituted service of a notice of appeal: Exp. Warburg, In re Whalley, 24 Ch. Div. 364.

Substituted service of a subpoena to name a solicitor has been ordered: Hamilton v. Thomas, W. N. (83) 31.