ence to the distance he may be at from England] days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in our court of in an action at the suit of A. B.; and take notice, that in default of your so doing the said A. B. may, by leave of the court or a judge, proceed therein to judgment and execution. Witness, &c. Memorandum to be subscribed on the writ. N.B.-This writ is to be served within (six) calendar months from the date thereof, or, if renewed, from the date of such renewal, including the day of such date, and not afterwards. Indorsement to be made on the writ before the service thereof. This writ is for service out of the jurisdiction of the court, and was issued by E. F., of attorney for the said plaintiff, or this writ was issued in person by A. B., who resides at [mention the city, town, or parish, and also the name of the hamlet, street, and number of the house of the plaintiff's residence, if any such]. The indorsement required by the 8th section should be made on this writ (supra, 13), but should allow the defendant the time limited for appearance to pay the debt and costs. This writ will be issued as any other by the plaintiff or his attorney, and as far as can be inferred from the statute, he is also to define the period for appearance, which the judge is afterwards to be satisfied was a reasonable time, "having regard to the time allowed for the defendant to appear being reasonable." It is to be hoped, however, that the new rules will furnish some data to guide the practitioner, even if they do not define the periods with respect to the countries most likely to be frequented by defendants. After this period has elapsed, the plaintiff will be authorized to proceed in such manner, and subject to such terms and conditions, as to the court or judge may seem fit, provided (1.) That there is a cause of action. (2.) That it arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction. (3.) a. That the writ was personally served on the defendant; or that reasonable efforts were made to effect personal service thereof, and that it came to his knowledge; b. 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; all which facts must be established to the satisfaction of the court or a judge by affidavits. Mere temporary absence from England would probably not Residence. be sufficient, as the natural and ordinary meaning of residence conveys the idea of home. That place is a person's residence in which his habitation is fixed without any present intention of removing therefrom. (See Story's Conflict of Laws, ss. 41-43; Withorn v. Thomas, 7 M. & G. 1.) The whole cause of action must arise within the jurisdiction, except where it is the breach of a contract made within it that is complained of, and the words "arise within the jurisdiction" seem not to be large enough to include a cause of action which might be tried in the court, although it arose out of England, e. g. an assault at Gibraltar. If a bill be drawn in England, but accepted abroad, the cause of action against the acceptor would not arise wholly within the jurisdiction. (Wilde v. Sheridan, 16 Jur. 426.) The exception of Ireland and Scotland will prevent any proceedings being taken in our courts against any persons while they remain in those countries, although having property here. That the defendant Cause of acwilfully neglects to appear, or that he is living out of the juris- tion. diction to defeat and delay his creditors, will be inferred according to the circumstances of the case. As to affidavit of service, &c. see infra, 29. The advantage of proceedings under this section will be, that the judgment obtained may at once be registered under 1 & 2 Vict. c. 110, and 3 & 4 Vict. c. 82, and all the benefits of that statute obtained, e. g. an order to charge stock, &c. 4. Writ against Defendant, resident out of the Jurisdiction, not being a British Subject. The fourth form is for the purpose of suing a person residing out of the jurisdiction, and not being a British subject. 19. "In any action against a person residing out of Service on the jurisdiction of the said courts, and not being a British foreigner. subject, the like proceedings may be taken as against a British subject resident out of the jurisdiction, save, that in lieu of the form of writ of summons in the Schedule (A.) to this act annexed marked No. 2, the plaintiff shall issue a writ of summons according to the form contained in the said Schedule (A.) marked No. 3, and shall in manner aforesaid serve a notice of such last-mentioned writ upon the defendant therein mentioned, which notice shall be in the form contained in the said schedule also marked No. 3; and such service shall be of the same force and effect as the service of the writ of summons in any action against a British subject resident abroad, and by leave of the court or a judge, upon their or his being satisfied by affidavit as aforesaid, the like proceedings may be had and taken thereupon. No. 3. Writ where the Defendant, not being a British Subject, resides out of the Jurisdiction. To C. D. Victoria, by the grace of God, &c. late of , in the county of We command you, That within [here insert a sufficient number of days within which the defendant might appear, with reference to the distance he may be at from England] days after notice of this writ is served on you, inclusive of the day of such service, you do cause an appearance to be entered for you in our court of in an action at the suit of A. B.; and take notice, that in default of your so doing the said A. B. may, by leave of the court or a judge, proceed therein to judgment and execution. Witness, &c. Memorandum to be subscribed on the writ. N. B.-Notice of this writ is to be served within [six] calendar months from the date thereof, including the day of such date, and not afterwards. Indorsements as in other cases. Notice of the foregoing Writ. To G. H., late of [Brighton, in the county of Sussex], or now residing at [Paris in France]. Take notice, That A. B. of day of in the county of England, has commenced an action at law against you C. D., in [Here state amount of claim as required by 8th section, but allowing the defendant the time limited for appearance to pay debt and costs.] Affidavits in may be With respect to the affidavit which may be required under the 18th and 19th sections, it is enacted by sect. 23. "Any affidavit for the purpose of enabling the court certain cases or a judge to direct proceedings to be taken against a defendant residing out of the jurisdiction of the said courts may be sworn before any consul general, consul, viceconsul, or consular agent for the time being, appointed. sworn before a consul. by her Majesty at any foreign port or place; and every affidavit so sworn by virtue of this act may be used and shall be admitted in evidence, saving all just exceptions, provided it purport to be signed by such consul general, consul, vice-consul, or consular agent, upon proof of the official character and signature of the person appearing to have signed the same (a)." The affidavit may be as follows: In the Q. B. [or " C. P.," or " Exch. of Pleas.”] Between A. B., Plaintiff, and C. D., Defendant. day of E. F. of clerk in the office of her Majesty's Secretary for Foreign Affairs, saith, that G. H. [naming the consul, &c.] before whom the affidavit of L. M. hereunto annexed purports to have been sworn, was on the [the date of the jurat] the consul-general [consul, vice-consul, or consular agent, as the case may be] appointed by her Majesty at : And this deponent further saith, that he knows and is well acquainted with the handwriting of the said G. H., and that the name of G. H. set and subscribed to the said affidavit of L. M. is of the proper handwriting of the said G. H., as this deponent verily believes. Sworn, &c. Affidavits are admissible, if sworn before a foreign judge or other functionary authorized by the laws of the country to take affidavits, and the signature to the jurat, and the authority to administer oaths, and take affidavits, be properly authenticated, that is, by affidavit, or a certificate of a consul general or consul, which, under 6 Geo. 4, s. 87, is equivalent to a notarial certificate. (See Dalmer v. Barnard, 7 T. R. 251; O'Mealy v. Newell, 8 East, 364.) But a consul as such could not take an affidavit in a cause, the 6 Geo. 4, c. 87, only giving him the same power as a justice of the peace or notary. public, (see Le Veux v. Berkeley, 5 Q. B. 836,) even although there may be no public functionary authorized to take affidavits, for the decisions in the Common Pleas only apply to acknowledgments of married women. (Williams v. Welsh, 3 D. & L. 537.) The affidavit may be made in a foreign language, if it is translated, and the translation verified; and the oath may be administered in a foreign language, if it is translated by an interpreter to the deponent; (Re Eady, 6 Dowl. 615;) and the foreign affidavit will be the proper one to be filed. (Re Birch, 6 Scott, 185.) It may be safely laid down that the averments must be clear and explicit as to the facts (a) The remaining part of the section is a provision for the punishment of forgery of signatures or perjury in the affidavit. See the statute at the end of the volume. Foreign judgment. Concurrent writs. constituting the cause of action; and it would be reasonable to require that, if they are not within the plaintiff's own knowledge, he pledge his belief that they are true. It is impossible, however, to foresee what degree of minuteness will be required by the courts; for although the decisions on affidavits to hold to bail at first seem very analogous, because the statute 1 & 2 Vict. c. 110, s. 3, requires the judge to be satisfied "of the cause of action," yet the reason given for insisting upon great particularity in those affidavits has been that the defendant had no opportunity of answering them, and they were conclusive for the arrest, whereas this is only a step to bring the defendant before the court, and it may be held that the enactment relates rather to the jurisdiction within which the cause of complaint arises, than the substantiality of the cause of action itself. "Saving all just exceptions" will leave the affidavit open to objection for any defect in the title, jurat, &c. The observations already made as to the form of the writ, and the indorsements (supra, 5 et seq.), and as to the time for appearance (supra), will apply. The special indorsement cannot be added. (See s. 25.) The words "the like proceedings,” coupled with the rest of the section, mean that the same conditions precedent as to the cause of action, &c. will apply. A foreigner could, however, hardly be said to be living out of the jurisdiction of the court, to defeat and delay his creditors. It is not improbable that the courts will be more strict in requiring proof of the defendant's actual knowledge of the suit, and also of his understanding the object of it, before they allow proceedings against foreigners under this novel power. In France, the merits of a foreign judgment, whether between foreigners or between Frenchmen, or between a foreigner and a Frenchman, are examinable whether it was obtained by default, or confession, or after full trial. (See Story's Conflict of Laws, s. 617.) The general doctrine in America is that they are prima facie evidence, but that they are impeachable; but how and to what extent is not definitely settled. The jurisdiction of the court and its powers over the parties, and the things in controversy may be inquired into, and the judgment may be impeached for fraud; but beyond this, no definite lines have as yet been drawn. (See Story's Conflict of Laws, s. 608.) Such are the different forms of the writs of summons; and as the plaintiff may be uncertain whether the defendant is in England or abroad, by sect. 22. "A writ for service within the jurisdiction may be issued and marked as a concurrent writ with one for service out of the jurisdiction, and a writ for service out of the jurisdiction may be issued and marked as a concurrent writ with one for service within the jurisdiction.” This section, however, will be much limited in its operation, because against persons out of the jurisdiction the writ with |