RULES OF Ord. 9. Where husband and wife are both defendants. Where infant defendant. Where lunatic or person of defendant. 2. On particular Defendants. 3. When husband and wife are both defendants to the action, service on the husband shall be deemed good service on the wife, but the Court or a Judge may order that the wife shall be served with or without service on the husband. 4. When an infant is a defendant to the action, service on his or her father or guardian, or if none, then upon the person with whom the infant resides or under whose care he or she is, shall, unless the Court or Judge otherwise orders, be deemed good service on the infant; provided that the Court or Judge may order that service made or to be made on the infant shall be deemed good service. 5. When a lunatic or person of unsound mind, not so found unsound mind by inquisition, is a defendant to the action, service on the committee of the lunatic, or on the person with whom the person of unsound mind resides or under whose care he or she is, shall, unless the Court or Judge otherwise orders, be deemed good service on such defendant. Where partners sued in name of firm. Statutory provisions for service in case 3. On Partners and other Bodies. 6. Where partners are sued in the name of their firm, 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 the rules hereinafter contained, such service shall be deemed good service upon the firm. 7. Whenever, by any statute, provision is made for service of any writ of summons, bill, petition, or other process upon of companies, any corporation, or upon any hundred, or the inhabitants of &c., retained. any place, or any society or fellowship, or any body or number of persons, whether corporate or otherwise, every writ of summons may be served in the manner so provided. Service where 4. In particular Actions. 8. Service of a writ of summons in an action to recover RULES OF COURT. land may, in case of vacant possession, when it cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwelling-house or other conspicuous part of Ord. 9. the property. action to recover vacant land. 9. In Admiralty actions in rem, the writ shall be served by Service in the Marshal or his substitutes, whether the property to be Admiralty actions in rem, arrested be situate within the Port of London or elsewhere by Marshal or within the jurisdiction of the Court, and the solicitor issuing his substitutes. the writ shall, within six days from the service thereof, file the same in the registry from which the writ issued. vice to arrest 10. In Admiralty actions in rem, service of a writ of Mode of effectsummons against ship, freight, or cargo on board is to be ing such sereffected by the Marshal or his officer nailing or affixing the ship, freight, original writ for a short time on the main mast or on the or cargo on single mast of the vessel, and, on taking off the process, leaving a true copy of it nailed or fixed in its place. board. mode of arrest 11. If the cargo has been landed or transshipped, service Where cargo is of the writ of summons to arrest the cargo and freight shall not on board, be effected by placing the writ for a short time on the cargo, ing it and and on taking off the process by leaving a true copy upon it. freight. These rules are rather vague in requiring the original writ to be nailed or affixed to the mast, or placed on the cargo for a short time. What is a short time, and why should it be thus nailed, affixed, or placed at all? We should have thought that the principle of Rule 6 had much better have been followed in such cases, i. e., where the matter on which the service was actually to be effected was inanimate, the fixing a copy alone should be sufficient. If anything further were required, the showing the original to anyone requiring to see it during a reasonable time might be expedient; but we can see little reason in the form required by these rules. 12. If the cargo be in the custody of a person who will not permit access to it, service of the writ may be made upon the custodian. Generally. 13. The person serving a writ of summons shall, within RULES OF Ord. 9. Person serving to indorse on writ day of month and week on which it was served. Old practice before 1852. three days at most after such service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non-appearance, to proceed by default; and every affidavit of service of such writ shall mention the day on which such indorsement was made. This rule is almost verbatim sect. 15 of the Common Law Procedure Act, 1852, and precisely to the same effect. Under the practice before 1852, which resembled it somewhat, where the person who made the service died within the three days, a Judge in chambers, upon an affidavit of the plaintiff's attorney of the facts and his belief of the service, ordered an appearance to be entered; sec stat. without such indorsement (a). And where the prescribed time had been allowed to elapse owing to the falsehood of the defendant in denying that he was the party named in the writ, an appearance sec stat. was allowed to be entered without it (). But under that practice the time within which the indorsement should be made was not fixed by statutory authority, though the making of the indorsement was required by statute. Where the defendant snatched the writ out of the hand of the party serving it, a rule was granted that he should deliver it up, that the time for appearing should be computed from the time when he got possession of it, and that in default of his delivering it up the plaintiff should be at liberty to enter an appearance without any indorsement, and that the defendant should pay the costs (c). The indorsement was sufficient where it was either printed or written by a stranger if signed or attested by the mark of the process server (d). Ord. 10. Application for substituted ORDER X. SUBSTITUTED SERVICE. Every application to the Court or a Judge, under Order service, &c., to IX., Rule 2, for an order for substituted or other service, or be supported for the substitution of notice for service, shall be supported by affidavit. by an affidavit setting forth the grounds upon which the application is made. (a) Lush's Pr., vol. i., p. 374. (b) Burrows v. Gabriel, 4 D. & L. 107. ORDER XI. SERVICE OUT OF THE JURISDICTION. RULES OF Ord. 11. when allowed. 1. Service out of the jurisdiction of a writ of summons Service out of or notice of a writ of summons may be allowed by the Court jurisdiction, or a Judge whenever the whole or any part of the subjectmatter of the action is land or stock, or other property situate within the jurisdiction, or any act, deed, will, or thing affecting such land, stock, or property, and whenever the contract which is sought to be enforced or rescinded, dissolved, annulled, or otherwise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action, was made or entered into within. the jurisdiction, and whenever there has been a breach within the jurisdiction of any contract wherever made, and whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within the jurisdiction. 4. This rule will be one to which constant reference will be made and on which it is hopeless to write an exhaustive note until it shall have been for a long time the subject of decision. In our comments on Order 2, Rule 4, the questions arising on service out of See note, the jurisdiction are discussed at some length, and indeed this rule Order 2, Rule seems to be intended as a definition of the cases in which the cause of action has arisen within the jurisdiction, or is properly cognizable against a defendant within the jurisdiction. In this sense it seems at first sight very fairly comprehensive of the cases in which defendants abroad should be adjudicated against at home; but it is only practice which can test its sufficiency. 2. In Probate actions service of a writ of summons or In Probate notice of a writ of summons may by leave of the Court or Judge be allowed out of the jurisdiction. actions may be allowed. In most probate actions no doubt this rule will do well; but we Rule seems too should be slow to say that the mere fact of the action being one vague. of probate should be in itself sufficient to allow service abroad, unless the case were one in which the administration of the deceased's estate would be better effected in this country than abroad. It is true that the leave of the Court or a Judge is by the rule required; but no direction is given by the rule as to the terms on which that leave should be given, and there can be no reference allowed to the first rule of the order, for the second would be un RULES OF meaning in mentioning probate cases which without that mention would be included in the first rule, if it were not by their mention Ord. 11. in the second rule intended to make them subject to some rule other than the first. Application for 3. Every application for an order for leave to serve such leave to serve thus to be supwrit or notice on a defendant out of the jurisdiction shall be ported by affi- supported by evidence, by affidavit, or otherwise, showing in what place or country such defendant is or probably may be found, and whether such defendant is a British subject or not, and the grounds upon which the application is made. davit. Order giving such leave to 4. Any order giving leave to effect such service or give limit time for such notice shall limit a time after such service or notice within which such defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served or the notice given. appearance. Notice in lieu of writ. 5. Notice in lieu of service shall be given in the manner in which writs of summons are served. As to the method of service, see notes on Order 2, Rule 4, pp. 130-135. Ord. 12. ORDER XII. APPEARANCE. Appearance to 1. Except in the cases otherwise provided for by these be entered in Rules a defendant shall enter his appearance in London. London. Defendant to writ from dis 2. If any defendant to a writ issued in a district trict registry registry resides or carries on business within the district, he shall appear in the district registry. residing in district to appear in district registry. Remarks on This rule seems no doubt to carry out the intention of the Act, but it seems to us by no means clear that the localising of legal localizing ten proceedings in the provinces, to which this shows a tendency, will dency of Act. not in the end have a most mischievous effect on the country generally by reducing and degrading the practice of the law, bringing matters in the end to a series of petty local judicatures, none of them of high character, and so destroying the great national institutions which now exist, frittering away the judicial power of the country, degrading its administration of the law, and, indeed, ultimately, by that means the law itself. This rule how |