plaintiff or his solicitor within

[insert the time limited for appearance

by the order] from the service hereof [or of notice hereof], further

proceedings will be stayed.

This writ was issued by G. H., of the said plaintiff [or by G. H., of

for the said plaintiff, or by the plaintiff in person], who resides at [mention the city, town, or parish, and also the name of the street and number of the house of the plaintiff's residence, if any (q)], whose address for service

is

N.B.

· (r).

This writ is to be used where the defendant, or all the defendants, or one or more defendant or defendants, is or are out of the jurisdiction. When the defendant to be served is not a British subject, and is not in British dominions, notice of the writ and not the writ itself is to be served upon him (t).

[Indorsement to be made on the writ after service of writ or notice in lieu thereof.]

This writ [or Notice of this writ] was served by me at

on the

19-.

(Signed) X. Y. (8). (Address)

5. Specially-indorsed Writ for Service, or of which Notice is to be given, out of the Jurisdiction (u).

[Title, &c., as in preceding form.]

Edward the Seventh [&c., commence as in preceding form down to the end of the teste, and proceed as follows:-]

N.B.-This writ is to be served [or notice of this writ is to be given] within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards.

The defendant may appear hereto by entering appearance either personally or by solicitor at the Central Office, Royal Courts of Justice, London.

(7) As to the indorsement of the name, &c., of solicitor and plaintiff, see ante p. 34, n. (x).

(r) As to the address for service, see ante, p. 34, n. (x).

(s) As to the indorsement of service, see ante, p. 35, n. (y).

(t) This indorsement is not mentioned in the Rules, but it is inserted in the form

in the Appendix.

(u) This form is given in R. S. C., App. A., Pt. I., No. 6.

(x) See forms, ante, pp. 44 et seq.

(y) See ante, p. 45, n. (r).

And £- [or such sum as may be allowed on taxation] for costs. If the amount claimed is paid to the plaintiff or his solicitor or agent within [insert number of days limited for appearance] days from service [if notice to be served, insert here, of notice] 'hereof, further proceedings will be stayed.

This writ was issued [&c., as in preceding form].

N.B. This writ is to be used [&c., as in preceding form].

This writ [or notice of the writ] was served [&c., as in preceding form].

6. Notice of Writ (in lieu of Service) to be given out of the Jurisdiction (z).

an action against you, G. H., in the King's Bench Division of his Majesty's High Court of Justice in England, by writ of that Court, dated the day of A.D. 19—: which writ is indorsed as follows [copy in full the indorsements (a)]. And you are required within days after the receipt of this notice, inclusive of the day of such receipt, to defend the said action, by causing an appearance to be entered for you in the said Court to the said action; and in default of your so doing, the said A. B. may proceed therein, and judgment may be given in your absence.

You may appear to the said writ by entering an appearance personally or by your solicitor at the Central Office, Royal Courts of Justice, London.

[This notice was served by me, on -day, the day of

Indorsed the day of

on the defendant

[An indorsement of service must in all cases be made on the writ itself.]

(2) Notice in lieu of Service of Writ.]-This form is that given in R. S. C., App. A., Pt. I., No. 9, the use of which is prescribed by Ord. II., r. 5. The name of the Court, however, which is there placed at the end of the form, is here given at the beginning, which seems the most convenient place. As to the mode of filling up the blanks, &c., in it, see the notes appended to the form of the ordinary writ of summons, ante, pp. 29 et seq. By Ord. XI., r. 7, " Notice in lieu of service shall be given in the manner in which writs of summons are served." As to the affidavit of service, see post, p. 78, and Bustros v. Bustros, 14 Ch. D. 849.

(a) The indorsements on the writ must here be copied in extenso. As to them, see ante, pp. 32 et seq.

7. Summons to set aside Writ for Service out of Jurisdiction (b). [Formal parts as usual] that the order dated, the writ of summons pursuant thereto, the service thereof, and all subsequent proceedings, be set aside, on the grounds [state them], and that the plaintiff pay to the defendant his costs of action and of this application.

8. Order setting aside Writ issued for Service out of the Jurisdiction, or whereof Notice is to be given out of the Jurisdiction, and Service thereof (b). [Formal parts as usual.] It is ordered that the order dated the writ of summons pursuant thereto [or if a notice in lieu of service has been ordered to be given, the writ of summons herein, and the notice thereof ordered to be served herein], and the service thereof, and all subsequent proceedings herein, be set aside [on the grounds that, here the grounds may be stated], and that the plaintiff do pay to the defendant the costs of this application.

The form of the order may be varied according to the facts of the particular case in which it is made.

SECTION III.-SUBSTITUTED OR OTHER SERVICE OF WRIT OR NOTICE WHERE PROMPT PERSONAL SERVICE CANNOT BE EFFECTED (c). 1. Affidavit in support of Application for Leave to serve Writ otherwise than personally, where prompt Personal Service cannot be effected (d).

I, C. C., of

[clerk to X. Y., of the same place], solicitor in this

(b) Setting aside Writ, &c.]—If the leave to issue the writ has been improperly granted, the defendant may apply to the Judge at Chambers for the purpose of setting aside the proceedings. And this is the proper way to make the objection, as he will not be allowed to set up the impropriety of the issue or service of the writ in his defence (Preston v. Lamont, 1 Ex. D. 361; White v. Macgregor, 46 J. P. 775). The Judge may order that the writ be set aside unless the plaintiff undertake to prove a cause of action arising within the jurisdiction, and to confine himself to that cause of action. The application should be supported by an affidavit showing the grounds on which it is made. It should be made promptly. By Ord. XII., r. 30, “A defendant before appearing shall be at liberty, without obtaining an order to enter, or entering a conditional appearance, to serve notice of motion to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorizing such service." It is still advisable to obtain leave to enter a conditional appearance where judgment might otherwise be signed in default. See Firth v. De Las Rivas, [1893] 1 Q. B. 768. Unconditional appearance by the defendant cures the objection as to the jurisdiction. (c) Substituted or other Service.]—By Ord. IX., r. 2, "When service is required the writ shall, wherever it is practicable, be served in the manner in which personal service

action for the above-named plaintiff [or as the case may be], make oath and say as follows:

1. Having been directed by [the said A. B., or X. Y.] to serve the above-named defendant C. D. personally with a copy of the writ of summons in this action, which appeared to me to have been regularly issued

is now made, but if it be made to appear to the Court or a Judge that the plaintiff is from any cause unable to effect prompt personal service, the Court or Judge may make such order for substituted or other service, or for the substitution for service of notice by advertisement, or otherwise as may be just."

In the King's Bench Division the practice, in cases where personal service cannot be promptly effected, now is to get an order giving leave to serve the defendant by sending a prepaid post letter to his place of residence, or to that and some other address or addresses. An order for substituted service of an ordinary writ cannot be made when the defendant is out of the jurisdiction, if he was so at the date of the issue of the writ (Fry v. Moore, 23 Q. B. D. 395 ; Wilding v. Bean, [1891] 1 Q. B. 100), unless indeed he went away to avoid service (Re Urquhart, 24 Q. B. D. 723). It can be made when the defendant leaves after the date of the writ (Jay v. Budd, [1898] 1 Q. B. 12).

There are other modes of substituted service in use, chiefly in the Chancery Division.

The first of these is substituted service in the strict sense of the term, a mode of procedure formerly in use in the Court of Chancery, and authorized by the statute 15 & 16 Vict. c. 86, s. 5, and the Consol. Ord., Ord. X., r. 2. Substituted service in this sense consists of serving some person, such as his agent or solicitor, instead of the defendant himself. It was allowed in a case where the defendant, who was abroad, had an agent in this country managing the matters in relation to which the suit was commenced (Hope v. Hope, 4 De G. M. & G. 328, where see the principles on which such service was allowed stated by Lord Cranworth; see Hobhouse v. Courtney, 12 Sim. 140). So it was ordered to be effected on the solicitor of the plaintiff in an action at law brought against the plaintiff in a Chancery suit (Sergison v. Beavan, 16 Jur. 1111; Baille v. Blanchet, 10 L. T. 365). In Hope v. Carnegie (L. R. 1 Eq. 126; see also Cooper v. Wood, 5 Beav. 391) substituted service was ordered on a solicitor who had acted for the defendant in transactions connected with the subject-matter of the suit, the bill being also ordered to be served at the defendant's residence abroad, when personal service had been attempted but found impracticable. Service on the medical officer of a lunatic asylum, who refused to allow the defendant, who was one of the inmates, to be seen, has been allowed (Raine v. Wilson, L. R. 16 Eq. 576; see Than v. Smith, 27 W. R. 617). In Hart v. Herwig (L. R. 8 Ch. 860), which was a suit for specific performance of an agreement for the sale of a ship, substituted service on the master, who was the authorized agent of the owner in the matter, was allowed. As to service on a defendant who is in prison, see Bland v. Bland, L. R. 3 P. & M. 233. As to who is an agent, for purposes of service, see Montgomery v. Liebenthal, [1898] 1 Q. B. 487; Swanzy v. Southwell, Ir. C. A., 64 L. T. Jour. 388.

Under the present Rule, where the solicitors of a defendant, who was in India, refused to accept service for him, substituted service was ordered on them and on the defendant's clerk, six weeks being allowed for appearance (Armitage v. Fitzwilliam, W. N. 1875, 238; see also Id. 1876, 21; and see Dymond v. Croft, 3 Ch. D. 512; 34 L. T. 786). Service on defendant's wife has also been ordered (Bank of Whitehaven v. Thompson, W. N. 1877, 45). Where the defendant had left his house and could not be found, service on his wife and by leaving a copy at his house and inserting certain advertisements, was ordered (Mullows v. Bannister, W. N. 1882, 183-Fry, J.).

The Rule, however, only applies to cases where there could be, but for difficulties in the way, personal service; it does not enable the plaintiff to serve a defendant, such

day of

out of and under the seal of the Central Office of the Supreme Court of Judicature by the above-named plaintiff against the above-named defendant, and dated the 19-, which said writ and copy were subscribed and indorsed in the manner and form prescribed by the Rules of the Supreme Court, and a true copy of which said writ is now produced and shown to me, marked A. (e), I did on the day of 19-(ƒ), attend for the purpose of serving a copy of the said writ at the place of residence of the said defendant, being No. —, in — street,

as a colonial government, who could not be effectually served at all (Sloman v. Government of New Zealand, 1 C. P. D. 563; 35 L. T. 454).

Substituted service on the ambassador of a foreign sovereign, named as a defendant, will not be allowed (Stewart v. Bank of England, W. N. 1876, 263).

Substituted service will not be ordered unless it is probable that the writ will thereby be brought to the defendant's knowledge (Wolverhampton and Staffordshire Banking Co. v. Bond, 43 L. T. 721; 29 W. R. 599; In re Slade, Slade v. Hulme, 18 Ch. D. 653; 45 L. T. 276; 30 W. R. 28).

Secondly, service under this Rule may, in cases within it, as in the case of an absconding defendant within the jurisdiction, be ordered to be effected by leaving a copy of the writ at the defendant's place of business, and at the lodgings which he has lately occupied, and by inserting advertisements in the London Gazette and the Times (Cook v. Dey, 2 Ch. D. 218; Hamilton v. Davies, W. N. 1880, 82), or by leaving a copy of the writ at each of several houses sought to be recovered, and advertising in the same manner (Crane v. Jullion, 2 Ch. D. 220). In this case the eight days for appearance run from the service of the copy and issue of the advertisements (Id.). In a case where the defendant appeared to be avoiding personal service, service was ordered to be effected by leaving a copy of the writ at his dwelling-house and place of business, and sending one to him by post (Capes v. Brewer, 24 W. R. 40; W. N. 1875, 193).

The third mode is by substituting a notice for service. This is not applicable in the ordinary case of an absconding debtor within the jurisdiction (Cook v. Dey, ubi supra); but it was allowed in a case where the defendant's only known place of residence was a club, and the solicitors who had acted for him in other matters refused to accept service, the notice being given by means of letters addressed to the defendant at his club, and at his solicitors respectively, and by inserting advertisements in the London Gazette, the Times, and another morning paper (Rafael v. Ongley, 34 L. T. 124; see also Hartley v. Dilke, 35 Id. 706; and Whitley v. Honeywell, Id. 517).

When service under an order under this Rule has been effected in the mode directed, the service is as effectual as personal service, and a judgment signed in default will not be set aside except on the same grounds as a judgment signed in default after personal service would be (Watt v. Barnett, 3 Q. B. D. 363-C. A.). As to substituted service of an ordinary summons, see Hunt v. Austin, 9 Q. B. D. 598.

(d) The Affidavit.]-By Ord. X., "Every application to the Court or a Judge for an order for substituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds upon which the application is made."

The form of affidavit given above may be used when it is desired to effect service by sending copies of the writ by post to the defendant's last place of residence. The affidavit must necessarily vary with the circumstances of each particular case.

It is necessary to satisfy the Master that reasonable efforts have been made to effect personal service, and either that the writ has come to the knowledge of the defendant, or that he is wilfully evading service.

(e) The affidavit must show that the writ and indorsements are regular.

(f) The affidavit should state that the calls have been made at the defendant's place of residence; it is not enough to state that the calls were made at the "house" of the