C.L.P. Act, Fiji: Woods v. Pacific Mail Co. (supra). But service on a mine manager at Broken Secretary. Under an English Act providing for service on the Secretary of a company, service on the secretary of the Caledonian Railway Co., which is partly in England and partly in Scotland, while he was attending a meeting in London, was held good: Wilson v. Caledonian Railway Co., (1850) 5 Ex. 822. But in a similar case, where the service was effected at the office of the company in Scotland, the service was set aside: Thompson v. N. British Railway Co., 42 L.T. 95 (see Day, C.L.P. Act, 43). Clerk. Where a statute provided that service of any writ or notice on the clerk, or by leaving the same at the head office of the company, or in case such clerk should not be found or known, then service on any agent or officer of the company, or by leaving the same at his abode, should be sufficient service on the company, it was held that the word clerk meant chief clerk, not a mere clerk employed under a secretary or other clerk: Walton v. Universal Salvage Co., 16 M. & W. 438. A writ was served on B., the manager of the Sydney branch of a banking company, having its head office in London, after he had received telegrams instructing him to stop payment and informing him that a winding up order had been made and a liquidator appointed in England. The Court refused to set aside the writ, holding that the telegrams were not sufficient evidence that the bank had ceased to carry on business in the Colony under B's management: Wilkins v. Oriental Bank, (1884) 5 N.S.W.R. 208. As to service on companies under the Companies Acts; see now the Companies Act, 1899, ss. 228, 229. 17. The service of the writ of summons shall, wherever it is practicable, be personal, but where reasonable efforts have been made without success to effect personal service, a true copy of the writ may be left at the defendant's then usual place of abode with some competent person there then residing, to be named or otherwise sufficiently described in the affidavit of service hereinafter mentioned. English section.-It should be noted that the corresponding section, under which the English cases have been decided (C.L.P. Act, 1852, s. 17), differed considerably from this. Instead of allowing substituted service, it provided that the plaintiff might obtain leave to proceed "as if personal service had been effected" upon satisfying a judge by affidavit that reasonable efforts had been made to effect personal service, and either that the writ had come to the knowledge of the defendant, or that he wilfully evaded service of the same, and had not appeared thereto. Writs may be issued or served in vacation : R. 10 (c), post. Personal service is effected by leaving a true copy of the writ with the defendant personally; and it is not necessary to show the original to the defendant unless he asks to see it: see Chitty's Archbold, 199, on this subject. The service should be made by some one who knows the defendant and can swear to his identity. A writ should not be served on a defendant when he is attending a court of justice: Cole v. Hawkins, 2 Stra. 1094; but where a writ is so served the service will not be set aside for irregularity, fieri non debet, factum valet: Poole v. Gould, 1 H. & N. 99. Where a husband and wife are sued together, service on the husband is sufficient: Buncombe v. Love, Barnes, 406. It was formerly held that personal service was absolutely necessary in the case of a lunatic, as he could not know of the writ and evade its service: Williamson v. Moggs, 28 L.J. Ex. 5; Holmes v. Service, 15 C.B. 293; 24 L.J., C.P. 24; and Ridgway v. Cannon, 23 L.J. Q.B. 143; 2 W.R. 473; formerly a distringas was necessary: Blake v. Cooper, 11 C.B. 680, but it has since been decided by the Court of Exchequer that an action may proceed against a lunatic on the writ of summons coming to his knowledge: Kimberley v. Allen, 8 L.T., N.S. 398, in the same way as against any other person (per Bramwell, B., Ibid.). Where the governor of a prison refused to allow service of a writ upon a defendant in the prison, the Court granted a rule to show cause why an attachment should not issue against him; whereupon service was permitted: Danson v. Le Capelain, 21 L. J. Ex. 219; and this course was followed in Denison v. Harding, 15 W.R. 346, where the defendant was confined in a lunatic asylum. Another method of procedure in such a case is to apply for a habeas to bring up the defendant to be served: Ridgway v. Cannon (supra); but see the remarks of the court, on this course, in Denison v. C.L.P. Act, Harding (supra). As to service on Commissioners of Admiralty, see Williams v. Commissioners for executing the Office of Lord High Admiral, 11 C.B. 420. Service on attorney. The defendant's attorney may accept service on his behalf, and such a service is equivalent to personal service. An undertaking by an attorney to appear will be enforced by attachment R. 37, post; Jacob v. Magnay, 12 L.J., Q.B. 93; Morris v James, 6 Dowl. 514; Squires v. Weekes, (1893) 9 W.N. 122 ; Darley v. Hyman, (1894) 15 N.S.W.R. 189; 10 W.N. 212. Reasonable efforts.-The efforts that will be considered reasonable are generally such as were considered necessary before applying for a distringas; they must be reasonable according to the actual facts and not merely according to the plaintiff's knowledge of them: Flower v. Allen, 2 H. & C. 688; 33 L. J. Ex. 83. In England, where an order had been made allowing the plaintiff to proceed without personal service, the defendant was entitled to have it set aside on showing that he had been without the jurisdiction ever since the issuing of the writ: Hesketh v. Fleming, 24 L. J. Q.B. 255; Flower v. Allen (supra). The plaintiff should make three separate applications: Gale v. Winkes, 2 N.C. 294; although two calls have been considered sufficient in some cases [per Erskine, J., Mills v. Boultbee, 1 Dowl. N.S. 707] at the defendant's residence: Croft v. Brown, 7 Q.B. 284; Russell v. Knowles, 2 D. & L. 595; on different days: Cross v. Wilkins, 4 Dowl. 297; unless an appointment 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; in the case of Goviller v. Fauntleroy, 2 W.N. (Eng.), 1867, p. 37. H.T., the Court of Common Pleas held, that it was necessary to prove that three calls had been made and two appointments, and that a copy of the writ had been left. The calls must be at the residence of the defendant: Rock v. Adam, 15 L.J., 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 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; but it has been held that where they are not made at the defendant's residence, it must appear from the affidavit that his place of residence is unknown, and that reasonable efforts have been made to ascertain it: Anon., 2 D. & L. 1001; Davies v. Westmacott, 7 C.B., N.S. 829; 29 L. J. C.P. 150; even where a copy of the writ had been left at the defendant's club house and is shown to have come to his hands (Ibid.), and see Newton v. Webster, (1866) 6 S.C.R. 12 (infra). In a more recent case, however, the same court seemed inclined somewhat to relax this rule as to calls at the defendant's residence, where he had a separate place of business: Tomlinson v. Goatly, L.R. 1 C.P. 230. The nature of the business ought to be mentioned, and notice given of the intended future call, and the day and hour mentioned, or an appointment made with the defendant: Johnson v. Rowse, 1 Dowl. 641; Cross v. Wilkins (ante); 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. These particulars were required in England to be mentioned in the affidavit on which the application to dispense with service was made and it was also necessary to state that the writ of summons had been regularly issued and indorsed: Wakeley v. Teesdale, 2 L.M. & P. 85. The inquiries made by the party endeavouring to serve the writ had also to be stated in the affidavit: Dubois v. Lowther, 4 C.B. 228; also the answers made to the inquiries: Fisher v. Goodwin, 2 C. & J. 94; that the court might judge whether the defendant was in truth avoiding service. The same particulars should be given here in the affidavit of service, to show that the substituted service was justifiable. Substituted service.-Substituted service is invalid unless reasonable efforts to effect personal service have been previously made in compliance with the section, even though it is clear that the writ has come to the defendant's hands in due time: Newton v. Webster, (1866) 6 S.C.R. 12; where the summons was left in an envelope at defendant's club; and see Hudson Bros. v. Wilkinson & others, (1890) 6 W.N. 114. Where the affidavit of service wrongly states it to have been personal, the proceedings will be set aside, though service might have been good under the latter part of the section: Hudson Bros. v. Wilkinson (supra); Sewell v. Sinclair, (1884) 1 W.N. 32. Statutory service. In the case of public companies, commissioners, and other bodies created by statute, the statute usually prescribes the mode of service, which must be strictly followed. With respect to corporations, see s. 16 (ante). Renewed and concurrent writs.-The above observations as to the service of the writ of summons apply, of course, to a renewed or concurrent writ. S. 17. C.L.P. Act, Actions against Irregularity of service.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; see Sevil v. Heath, (1877) Knox 359 (ante) s. 7, notes; McLean v. C. Y. Lee, (1885) 2 W.N. 51; Hudson Bros. v. Wilkinson & others (supra); and Sewell v. Sinclair, 1 W.N. 32 (ante). As to applications to set aside, see s. 20 (post), and R. 309 (post). Waiver of irregularity.-An objection to the service of a writ may be waived by lapse of time: Holmes v. Russell, 9 Dowl 487; Davis v. Sherlock, 7 Dowl. 530; by taking a step in the cause: Homfray v. Kenning, 2 Chit. 236, R. 309 (post); by asking for time to pay: Rawes v. Knight, 1 Bing. 132; or by promising to settle: Lloyd v. Hawkyard, I M. & R. 32; or by expressing regret at not having paid: Holt v. Ede, 1 D. & L. 68. Notice not to appear.—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. 309 (post): Bayne v. Slack, 3 C.B., N.S. 363; 27 L.J., C.P. 14. 18. (1) In case any defendant being a British subject is residing out of residing out of the jurisdiction of the Court, the plaintiff may the jurisdiction. issue a writ of summons in the Form No. 3 contained in the 17 Vic. No. 21, Second Schedule hereto, which writ shall bear the indorsement contained in the said form purporting that such writ is for service out of the jurisdiction. s. 16. (2) The time for appearance by the defendant to such writ shall be regulated by the distance from Sydney of the place where the defendant is residing. (3) The Court or a Judge, upon being satisfied by affidavit- (b) that the writ was personally served upon the defendant (c) either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction in order to defeat and delay his creditors, may from time to time direct that the plaintiff shall be at liberty to proceed in the action in such manner and subject to such conditions as to the Court or Judge 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 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 the prothonotary of the Court in the manner hereinafter provided according to the nature of the case as the Court or Judge may direct, and the making such proof shall be a condition precedent to his obtaining judgment. Provision for service of writs, etc., within other States of the Commonwealth is C.L.P. Act, now made by the Commonwealth Service and Execution of Process Act, 1901: see the Act (post). British subject.-This section does not apply to foreign corporations: Ingate v. Austrian Lloyds', 4 C.B., N S. 704; 27 L. J., C.P. 323; even though in other British possessions: Peele v. Australian Fruit Preserving Co., (1885) 2 W.N. 10; Ellis v. Lyttleton Harbour Board, (1885) Ibid., 45: Connell v. Neil & Co., (1890) 7 W.N. 6. But now a corporation in another State of the Commonwealth could apparently be served under the Commonwealth Service and Execution of Process Act, (1901), post. Residing out of the jurisdiction.--Where the defendant, though his residence is out of the jurisdiction, happens to be within the jurisdiction, the plaintiff may serve him with an ordinary writ under s. 4 (ante). A writ indorsed for appearance within eight days having been served on the defendant in Sydney, an application by him to set aside the writ on the ground that he was a resident of New Zealand and could only be proceeded against under this section, was dismissed with costs: Davis v. Harley, (1884) 5 N.S.W.R. 213. May issue a writ in Form No. 3. -The provisions as to the issue, service and indorsement under s. 10 of ordinary writs apply to this writ, but not the provisions as to special indorsement: North v. Shierlaw, (1897) 13 W.N. 163. There is a special provision (s. 23, post) enabling consuls to take affidavits of service. As the original writ must be shown to a defendant when served, if required by him, the original writ should, in the case of service out of the jurisdiction, be sent to the person charged with the service. As to indorsement of service, see s. 15 (ante). The use of the wrong Form may be amended, s. 21. The time for appearance-—The time allowed for appearance is now fixed by R. 34 (post). Under the English practice it was left to the plaintiff to judge for himself what would be a reasonable time. Affidavit.-The affidavit need not necessarily be made by the plaintiff. It may be made by one of several plaintiffs: Swayne v. Crammond, 4 T.R. 176. It may be made by another person, who can swear to the cause of action, the existence of which should not only be shown according to his knowledge, but the means of that knowledge should appear, that the Court or Judge may see whether the deponent has sufficient means of knowledge. The insufficiency of the affidavit may be waived by the defendant: Harrison v. Williams, 24 L.T. 149. Cause of Action.-It may be useful to refer to a few of the cases illustrative of what have been held sufficient and what insufficient statements of "causes of action,”cases generally decided on applications to hold defendant to bail; but the principles laid down in these cases may be considered generally applicable to an affidavit necessary for obtaining leave to proceed on a defendant's absence and non-appearance. 1 The plaintiff must show a distinct cause of action in law, that is to say, one which, if alleged in a declaration, would not be open to demurrer : Siemann v. Cooke, (1887) 4 W.N. 72 ; and see other cases on ca re., Arrest on Mesne Process Act, (1902), post. In a case where the defendant was stated to be indebted to the deponent, under a deed by which the defendant covenanted to pay money at a time now past: Lambert v. Wray, 3 Dowl. 1691; and in another, where the defendant was said to be indebted to the plaintiff in £500“ upon a certain indenture of mortgage, by which the defendant covenanted to pay the said sum of money to the plaintiff at a certain day now past": Masters v. Billing, 3 Dowl. 751; the affidavits were held sufficient. An affidavit on a bond should state the bond to be due and payable: Smith v. Kendal, 7 D. & R. 232. In a case where the affidavit stated the debt to " be for principal and interest due on a bond," without stating the bond to be conditioned for the payment of money: Byland v. King, 7 Taunt. 275, it was held sufficient. An affidavit of debt on an award should state the submission, the making of the award, and that the money was due at a day past: Anon. 1 Dowl. 5. If the award direct the money to be paid by defendant to plaintiff on demand, such demand should be stated: Driver v. Hood, 7 B. & C. 494. An affidavit that the defendant was indebted for damages awarded, and for costs and expenses taxed and allowed, has been held sufficient: Jenkins v. Law, 1 B. & P. 365. Bills and notes.--Where the debt arises on bills or promissory notes, these should be stated to be due and unpaid: Kirk v. Almond, 1 Dowl. 318. If a note is payable by instalments, the affidavit should show what instalments are due and unpaid: S. 18. C.L.P. Act, Hart v. M'Gerris, 3 Tyr. 238. An affidavit, stating the defendant to be indebted S. 18. in a certain sum, as the balance of a bill drawn by plaintiff and accepted by the defendant, and due at a day past, has been held sufficient: Walmsley v. Dibden, 4 Moo. & P. 10. It should also appear how the defendant is liable, whether as acceptor, drawer or indorser: Humphreys v. Winslow, 6 Taunt. 531. The affidavit should show the character in which the plaintiff claims, whether as indorsee or payee; and if as in dorsee, it should state by whom the bill was indorsed: Lewis v. Gompertz, 1 Dowl. 319. Intermediate indorsements need not be stated when the maker of a promissory note is sued by an indorsee of the payee : Luce v. Irvin, 6 Dowl. 92 ; in actions against the drawer of a bill, the affidavits should allege the presentment to, and the default of the acceptor, or facts to dispense with these allegations: but it need not allege notice of dishonour: Simpson v. Dick, 3 Dowl. 731. Goods sold, &c.-Affidavits of debt for "goods sold," not stating delivery, and for "goods sold and delivered," not stating “by the plaintiff to defendant":Young v. Gatien, 2 M. & S. 603; Handley v. Franchi, L.R. 2 Ex. 34; Whyte v. Cargill, (1863) 2 S.C.R. 171; for goods sold and delivered to the defendant without saying by the plaintiff ": Carthrow v. Hagger, 1 East. 106; and for goods sold and delivered for the defendant, instead of to the defendant: Bell v. Thrupp, 2 B. & A. 596; for work done and materials provided, and goods manufactured and made by the deponent for the defendant at his request: Pontifex v. Maltzoff, 1 Exch. 436, have been held bad. Money lent, &c.-An affidavit of debt for money paid, laid out, and expended, and lent and advanced, by plaintiff "to" the defendant, and at his request, omitting the words "for the defendant," has been held insufficient: Frick v. Poole, 9 B. & C. 543. An affidavit for money had and received on account of the plaintiff ought to state it to have been received by the defendant to the plaintiff's use: Kelly v. Curzon. 4 Ad. & E. 622. Account stated. An affidavit that defendant is indebted to plaintiff in £1,000, under an agreement in writing, whereby defendant undertook to pay plaintiff the balance of accounts, &c. " which said balance is still due and unpaid," without stating that the balance was £1,000, was held insufficient: Hatfield v. Linguard, 6 T.R. 217. So also where the words were for money found to be due from the said defendant to me, on the balance of an account current, from 18th February, 1856, to 20th August instant": Prince v. Kennedy, (1863) 2 S.C.R. 174. But an affidavit that defendant is indebted to plaintiff on the "balance of an account stated," without adding" and settled ": Tyler v. Campbell, 3 N.C. 675; and an affidavit stating defendant to be indebted to plaintiff " on an account stated between them," have been held sufficient: Balmanno v. May, 6 Dowl. 306. Guarantee. An affidavit against the surety, on a guarantee for goods should show the amount guaranteed, the terms of the guarantee, that the time for payment had elapsed, and that the principal debtor had not paid: Angus v. Robilliard, 2 Dowl. 90. Breach of agreement.-An affidavit of a cause of action arising on the breach of an agreement must state a breach of the agreement: Stinton v. Hughes, 6 T.R. 13. An affidavit that "defendant is indebted to me for services rendered to him and accounts paid for him as his manager upon a recent athletic tour in Brisbane and Newcastle is insufficient for want of the addition" at the request of the defendant": Siemann v. Cooke, (1887) 4 W.N. 72. Interest. If interest be sought to be recovered as a debt, the affidavit should show an express contract: Harrison v. Turner, 4 Dowl. 72. It need not state the amount of the principal, nor the time when it began to run: White v. Sowerby, 3 Dowl. 584. Which arose within the jurisdiction, etc.-The English decisions on the meaning of the expression "cause of action which arose within the jurisdiction" were for a time very conflicting. In the Court of Queen's Bench it was held, in the case of contracts, that both the making of the contract and the breach must have taken place within the jurisdiction: Alhusen v. Malgarejo, L.R. 3 Q.B. 340; Cherry v. Thomp son, L.R. 7 Q.B. 573. The Courts of Common Pleas and Exchequer, on the other hand, adopted the construction that the section applied to a breach within the jurisdiction of a contract made anywhere between the plaintiff and defendant. Thus, where the contract was made in the Isle of Man, and the breach took place in England, the Court of Common Pleas held that the section applied, that "the cause of action meant the act on the part of the defendant which gave the plaintiff his cause of complaint: Jackson v. Spittall, L.R. 5 C.P. 542. In a later case it was announced that " |