ment is made by or on behalf of the defendant for a second call on the same day (Jamieson v. Wilkins, 2 Dowl. N. S. 331). The calls must be at the residence of the defendant (Rock v. Adam, L. J. 15, C. P. 192), unless he has no fixed residence, or has left and cannot be found (Greenwood v. Selden, 9 Dowl. 72), in which case it must be shown that he is not abroad (Norman v. White, 4 Bing. N. C. 636). The calls may be made at the defendant's place of business if his residence be unknown (Baker v. Coe, 1 Exch. 153), and it must appear from the affidavit that such is the fact (Anon., 2 D. & L. 1001), and it must be shown that reasonable efforts have been made to ascertain it (Davies v. Westmacott, L. J. 29, C. P. 150). The nature of the business ought to be mentioned, and notice given of the intended future call, and effect service. the day and hour mentioned, or an appointment made with the defendant (Johnson v. Rowse, 1 Dowl. 641; Cross v. Wilkins, ubi sup.; Newman v. Hickman, 9 Dowl. 546). On the last call a copy of the writ should be left for the defendant (Hill v. Maule, 2 Dowl. 10).

Efforts to

Writ's coming to defendant's knowledge.

No appear

ance.

Application

for leave to

proceed.

These particulars should be mentioned in the affidavit on which the application to the court or judge is made, which ought to state the writ of summons to have been regularly issued and indorsed (Wakeley v. Teesdale, 2 L. M. & P. 85). The inquiries made by the party endeavouring to serve the writ should also be stated in the affidavit (Dubois v. Lowther, 4 C. B. 228), as should also the answers made to the inquiries (Fisher v. Goodwin, 2 C. & J. 94), that the court may judge whether the defendant is in truth avoiding service.

It must be distinctly shown that the defendant knows of the writ and evades its service (Kitchen v. Wilson, 4 C. B., N. S. 483).

2ndly. The facts to show that the writ has come to the knowledge of the defendant must depend on each particular case, as must also those from which can be derived the conclusion, that he evades service of the writ (see Thomas v. Pearce, Goggs v. Lord Huntingtower, Heath v. White, Christmas v. Eicke, Russell v. Lowe, Davies v. Westmacott, supra). Where it can clearly be shown that the defendant is aware of the writ, and merely avoids service, the strict requirements as to the efforts to be made to effect service are not generally insisted on (Wilkins v. Jones, 3 D. & L. 747; and see Godinage v. Terrewest, L. J. 20, Q. B. 209, in which case the defendant had corresponded with the plaintiff's attorney as to a compromise of the action; see also Barringer v. Handley, 12 C. B. 720).

Where the defendant was ill and could not be seen, a distringas was, under the old practice, granted after the usual applications (Shepperd v. Williams, 11 C. B. 682).

3rdly. The fact of no appearance having been entered for the defendant may be stated in the same affidavit as the attempts to effect service, or in a separate affidavit. The search must be made before any application for leave to proceed, as if service had been effected. It should appear to have been recent (Hooker v. Townsend, 1 Hodges, 204), and, if possible, on the day of, or on which, the application for leave to proceed is made (Spence v. Barker, 8 Dowl. 296). A search four days old has been considered stale (Drinkwater v. Mills, 12 C. B. 452).

The application ought to be, "that the plaintiff be at liberty to proceed as if personal service had been effected" on the de

fendant. It cannot be made until after the lapse of eight days from the last attempt to serve the defendant (Brian v. Stretton, 1 Dowl. 642), nor must it be delayed for an unreasonable time (Bromage v. Ray, 9 Dowl. 599); two months have not been considered an unreasonable delay (Begton v. Wood, L. J. 15, Ex. 347).

The application is made ex parte, and the rule may be made absolute in the first instance (Barringer v. Handley, ubi supra).

The statements in the affidavit on which the application is founded ought to be clear and satisfactory, since, under the old law, the distringas was itself a kind of notice to the defendant that he might appear. It would seem that a rule or judge's order, when obtained, will not be set aside on affidavits merely contradicting those on which the rule or order was obtained (Whittaker v. Crocker, 2 L. M. & P. 76).

Statutory Service of Writs.

As regards the service of writs and other proceedings on public Public comcompanies, commissioners, &c., statutory modes of service are panies. generally given. The Companies Clauses Consolidation Act (8 Vict. c. 16, s. 135), provides that service on the secretary shall be sufficient. It has been held that service on the secretary to the Caledonian Railway Company,-which is partly in England and partly in Scotland,-while he was attending a meeting in London, was good service (Wilson v. Caledonian Railway Company, 5 Exch. 822).

The statute 7 Will. 4 & 1 Vict. c. 73, s. 26, provides, with re- Chartered ference to trading companies, that service of any writ or notice companies. on the clerk, or by leaving the same at the head office for the time being of the company, or in case such clerk shall not be found or known, then service thereof on any agent or officer employed by the company, or by leaving the same at the usual place of abode of such agent or officer, shall be deemed good and sufficient service on the company.

The word clerk here means chief clerk, not a mere clerk employed under a secretary, or other clerk (Walton v. Universal Salvage Company, 16 M. & W. 438).

Service upon a corporation aggregate is provided for by Corpora

sect. 16.

tions.

It would seem that service of writs may be made at the com- Joint-Stock pany's office on the secretary of a joint-stock company completely companies. registered under 7 & 8 Vict. c. 110.

Service upon a director of a company registered under the 19

& 20 Vict. c. 47, was held bad (Towne v. Limerick Steam Ship

Company, Limited, 5 C, B., N. S. 730).

In any action against any printer, publisher, or proprietor of Frinter, &c. any newspaper, service of any writ or notice at the house or place of newspaper. mentioned in the declaration of such printer, &c., as the house or place at which such newspaper is printed or published, shall be good and sufficient service upon any person named in such declaration as printer, publisher, or proprietor of the newspaper therein mentioned (6 & 7 Will. 4, c. 76, s. 9).

The above observations as to the service of the writ of summons apply, of course, to a renewed or concurrent writ.

Waiver of

Irregularity in Service of Writs.

If the service of the writ is irregular, it may be set aside. If the irregularity is apparent from the copy served, as, for example, if there is no indorsement of the amount of costs claimed by the plaintiff, the defendant may apply either to the court or to a judge at chambers to set it aside; and the application should be to set aside the service (Truslove v. Whitechurch, 8 Dowl. 837; Hall v. Redington, 5 M. & W. 603; see also Wills v. Dawson, 2 Dowl. N. S. 465; Hemp v. Warren, 2 Dowl. N. S. 758). As to applications to set aside, see sect. 20, post, and R. G., H. T. 1853, 135, 136, 137.

An objection to the service of a writ may be waived by lapse irregularity. of time (Holmes v. Russell, 9 Dowl. 487; Davis v. Skerlock, 7 Dowl. 530); by taking a step in the cause (Homfray v. Kenning, 2 Chit. Rep. 236; R. G., H. T., 1853, 135); by asking for time to pay (Rawes v. Knight, 1 Bing. 132); or by promising to settle (Lloyd v. Hawkyard, 1 M. & R. 32); or by expressing regret at not having paid (Holt v. Ede, 1 D. & L. 68).

Notice not to appear.

As to actions against

British sub

out of the

jurisdiction

of the Superior Courts.

If the plaintiff discovers an irregularity in the writ, copy, or service, he may give the defendant notice not to appear, which will prevent the defendant, if he have had notice in time, from incurring further costs. If he has incurred costs, as, for instance, by obtaining a rule or summons to set aside the proceedings, such costs should be tendered.

See also as to reasonable time within which to apply, and also as to application of the R. G., H. T. 1853, 135, Bayne v. Slack, L. J. 27, C. P. 14.

18. In case any defendant, being a British subject, is residing out of the jurisdiction of the said Superior jects residing Courts, in any place except in Scotland or Ireland,* it shall be lawful for the plaintiff to issue a writ of summons in the form contained in the Schedule A. to this act annexed, marked No. 2, which writ shall bear the endorsement contained in the said form, purporting that such writ is for service out of the jurisdiction of the said Superior Courts; and the time for appearance by the defendant to such writ shall be regulated by the distance from England of the place where the defendant is residing; and it shall be lawful for the court or judge, upon being satisfied by affidavit that there is a cause of action, which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction, and that the writ was

It is to be observed that a writ cannot be issued under this section against a defendant residing in Scotland or Ireland. The words creating this exception were introduced into the act at the last moment. A Scottish plaintiff may sue an English defendant in the courts of Scotland if he have any property [semble, of whatsoever nature and howsoever small (London and North Western Railway Company v. Lindsay, 3 McQueen's H. L. Rep. 99)], which can be attached jurisdictionis fundandæ causâ, and the latter may never hear of the action till he finds his property seized by a judgment creditor. An English creditor has no such remedy against a debtor in Scotland or Ireland. He must go to the Scottish or Irish courts, as the case may be; and this even if the debtor have all his property in this country.

personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof upon the defendant, and that it came to his knowledge, and either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction of the said courts in order to defeat and delay his creditors, to direct from time to time that the plaintiff shall be at liberty to proceed in the action in such manner, and subject to such conditions, as to such court or judge may seem fit, having regard to the time allowed for the defendant to appear being reasonable, and to the other circumstances of the case: provided always, that the plaintiff shall and he is hereby required to prove the amount of the debt or damages claimed by him in such action, either before a jury upon a writ of inquiry, or before one of the Masters of the said Superior Courts, in the manner hereinafter provided, according to the nature of the case, as such court or judge may direct; and the making such proof shall be a condition precedent to his obtaining judgment.*

The indorsement required by s. 8 (p. 6), ante, should be made on this writ, but should allow the defendant the time limited for appearance to pay the debt and costs.

This simple procedure has been substituted in lieu of the proceeding to outlawry. While an absent defendant has ample opportunity of defending himself, reckless and fraudulent creditors are no longer able to set their creditors at defiance by leaving the country.

This writ of summons differs from the ordinary writ in not Writ. specifying in the body of it the time for entering an appearance. This is left to the plaintiff, who must judge for himself what time it will require to enable the defendant to appear (which will depend, of course, upon the place of his residence), and fill up the

blanks in the writ and endorsement accordingly. The indorse- Indorsements ment of the name and address of the person issuing the writ on writ. must be as special as in the case of an ordinary writ (p. 4, ante).

It has likewise an indorsement that the writ is for service out of the jurisdiction.

The previous observations as to the issue and service of ordinary writs of summons apply to this peculiar writ, and there is a special provision (s. 23) enabling consuls to take affidavits of service.

A writ for service out of the jurisdiction should be endorsed by the person serving it, as in the case of an ordinary writ of summons under s. 15, ante.

As the original writ must be shown to a defendant when served, if required by him, the original writ should, in the case

* Execution upon the judgment thus obtained may be registered under 23 & 24 Vict. c. 38, and made available against the defendant's property in this country.

Inquiry before Master.

of service out of the jurisdiction, be sent to the person charged with the service.

The plaintiff cannot recover final judgment upon non-appearance, against a defendant served with process out of the jurisdiction. The proviso at the end of the section involves an inquiry before the Master (in ordinary cases) under s. 94, post.

Before a plaintiff can proceed under this section, he must obtain the leave of the court or of a judge to do so, and this leave is only obtainable, 1stly, on the court or judge being satisfied by affidavit that there is a cause of action which arose within the jurisdiction, or in respect of the breach of contract made within Proceedings, the jurisdiction; 2ndly, that the writ was personally served, or if service that reasonable efforts were made to effect personal service, and cannot be that the writ came to the defendant's knowledge; 3rdly, that the defendant wilfully neglects to appear to the writ, or is living out of the jurisdiction of the court in order to defeat and delay his creditors.

effected.

1. Cause of action within the jurisdiction.

Affidavits.

Court.

Cause. Parties.

Initials of parties.

1. The court or a judge must be satisfied by affidavit of the existence of a cause of action, and of its being within the jurisdiction of the court; but the insufficiency of the affidavit may be waived by the defendant (Harrison v. Williams, 24 L. T. 149, Ex.)

The words "cause of action" are not here to be construed as comprising the whole cause of action, and therefore the dishonour in England of a promissory note made and delivered to the plaintiff in France but payable in England, was held to be within the section (Fife v. Round, 6 W. R. 282, Ex.)

The Court of Exchequer have interpreted this section so as to claim and exercise jurisdiction wherever leave has been given, whether rightly or wrongly, to proceed under it (Hutton v. Whitehouse, 4 W. R. 463); Martin, B., observing, that "it is not required that there should be a cause of action, but that the court or a judge should be satisfied that there is one." Where, however, a defendant, upon service of writ abroad, made an affidavit denying that the cause of action arose in England, the proceedings were set aside (Bivet v. Picot, 4 H. & N. 365).

Appearance by the defendant operates as a waiver of objection to the jurisdiction (Forbes v. Smith, 10 Exch. 717).

The costs of foreign service are allowed on taxation (White v. Brett, L. J. 28, Ex. 32).

As affidavits will be required in many of the proceedings under the statute, it may not be inopportune in this place to state, as succinctly as possible, the general rules to be followed in framing these instruments.

AFFIDAVITS.

(a) Their Title.

An affidavit should be entitled in the court in which the action is brought (Molling v. Poland, 3 M. & S. 157). It should also be entitled in the cause (Ball v. Stanley, 6 M. & W. 396); in which case it ought to state the Christian names and surnames of all the parties to the action, otherwise it cannot be used (Anderson v. Baker, 3 Dowl. 107; Cohen v. Williams, 8 Dowl. 418). Thus an affidavit entitled A. v. B. and others, would be bad (Doe dem. Pryme v. Roe, 8 Dowl. 340). The Christian name and surname should be stated at length (Masters v. Carter, 4 Dowl. 577). In actions upon bills of exchange, promissory notes, or other written instruments, any of the parties to which are designated by the initial letter or letters, or some contraction, of the Christian or first