Accordingly, where there was an omission to state the day of the week of the service upon one of the defendants, although the day of the month was correctly stated, the Court set aside a judgment which had been marked against all the defendants (Mulholland v. M⭑Court, 11 Ir. Jur. N. S. 13). Or amended. And in Knaresborough v. Edmundson, 1 Ir. L. T. 278, the Court refused to allow an amendment in the indorsement. Exceptions. Service of L summons in ordinary cases. Personal service. When to be effected. How effected. On husband and wife. On prisoner. Where, however, the original writ had been taken from the process server with violence by the defendant, the Court gave leave to issue a duplicate writ, and granted a conditional order to mark judgment, although no indorsement had been made (Brunton v. Doyle, Ir. R. 2 C. L. 86). Leave, too, has been given to amend the indorsement where the day of the week was through mistake incorrectly stated (Kyne v. Murphy, Ir. R. 2 C. L. 34). And see Galway Commissioners v. Doyle, 8 Ir. Jur. N. S. 95; Darcy v. Wynne, 7 Ir. Jur. Q. S. 160; Goff v. Fenlan, 6 Ir. Jur. N. S. 41. 32. Service of any writ of summons and plaint on the defendant shall be effected either by delivery of a copy of such writ to the defendant in person (e), if it be reasonably practicable; and in other cases, and where it shall appear by the affidavit of service hereinafter mentioned that such defendant is personally within the jurisdiction (ƒ), and that due and reasonable diligence (g) has been exercised in endeavouring to effect such personal service, and without effect, in such case it shall be sufficient to make service of such writ by leaving such copy at the defendant's house or place of residence, or at his office, warehouse, counting-house, shop, factory, or place of business, with the wife, child, father, mother, brother, or sister of the defendant, or with any servant or clerk of the defendant (the person with whom such copy shall be left being of the age of sixteen years or upwards), and showing to such person the original, or duplicate original, of such summons and plaint (h). (e) The Statute requires the service of the writ to be personal whenever practicable. It should be served by a person who knows the defendant, and can swear to his identity. It may be served late at night (Priddle v. Cooper, 1 Bing. 66). But it cannot be served on a Sunday; and such a service would be wholly void (Taylor v. Phillips, 3 East, 155). In cases of personal service it is not necessary to leave the copy in the actual corporal possession of the person served; for if, after informing the defendant of the nature of the process and tendering the copy, he refuses to receive it, the placing it on his person or throwing it down in his presence will be sufficient service (Bell v. Vincent, 7 D. & R. 233). So also the service is good, if the copy and original be shown to the defendant through the window, and the copy left on the window stool (Hunt v. Egan, 1 Leg. Rep. 174); with which compare Christmas v. Eicke, 6 D. & L. 156. In actions against husband and wife, service on the husband has been held to be sufficient. (Buncombe v. Love, Barnes, 406, 412). The writ may be personally served on a prisoner (Cosby v. Robinson, 5 Ir. Jur. N. S. 37). And though orders for substitution of service on the governor of the prison have been made (Maguire v. Gardiner, 4 Ir. L. R. 310), yet such an order would scarcely be granted now; and it would be a contempt of Court on the part of the governor not to bring the defendant forward for the purpose of service (Danson v. Le Capelaine, 21 L. J. Ex. 219). Undertaking An undertaking by an attorney to appear and defend, or give a consent to appear. for judgment, will be enforced by attachment (Ch. Arch. 12th ed. p. 200); or an order will be made that the plaintiff be at liberty to mark judgment after a limited time, unless cause be shown (Butler v. Anderson, 2 Ir. Jur. N. S. 332; Hall v. Rynd, 8 Ir. C. L. R. App. 4). In cases where the attorney is not authorized to give the undertaking, the judgment will of course be set aside (Doyle v. Roche, 1 Ir. Jur. N. S. 153; Synnott v. Green, 7 Ir. Jur. N. S. 278). in service. How taken advantage of. When a plaintiff effects, or attempts to effect service under this section, Irregularity his proceedings are liable to be set aside, if he be guilty of any irregularity. The irregularity may be in the writ itself, or in the copy of it served. (See ante, sects. 9, 10, 11, 12, and 16). If the iregularity be in the writ, the application will be to set aside the writ and all the proceedings under it; if in the copy only, the application will be to set aside the service (Hall v. Redington, 5 M. & W. 605). And in Holdbrook v. Dymoke, Ir. R. 2 C. L. 674, where the copy served was irregular, the Court set aside a judgment marked. The irregularity may also arise from the manner of the service, or the proceedings attending it, as in Mulholland v. M'Court, 11 Ir. Jur. N. S. 13, where the indorsement was defective. As to waiving an irregularity in the service, see Holmes v. Russell, 9 Dowl. 487; Rawes v. Knight, 1 Bing. 132. Where judgment is marked against a defendant who has not been served with the writ, he may apply to the Court to set aside the judgment; but the cases are conflicting as to the terms on which relief will be given. In Tisdall v. Humfreys, Ir. R. 1 C. L. 1, where it appeared that the defendant was not within the jurisdiction at the time of the alleged service, or from that time till judgment, the Court set aside the judgment, although there was no denial that the process had come to the defendant's hands, and no affidavit of merits; and see Flower v. Allan, 2 H. & C. 688. Setting aside fendant not Where the come to the Where the defendant is within the jurisdiction, it has been frequently held that relief will not be granted if he allows an unreasonable time to elapse writ has after knowledge of the action without applying, as the proceedings in such a knowledge of case are irregular only, and not void (Lewis v. Berry, 6 Ir. L. R. 45; Lewis the defendv. Henry, 6 Ir. L. R. 218; Cowan v. Darcy, 2 Ir. Jur. O. S. 315; Holmes ant v. Russell, 9 Dowl. 487; Williams v. Pigott, 1 M. & W. 574). And the affidavit should, therefore, state how defendant first became aware of the writ. Assuming that the defendant applies within a proper time, the next question is, what evidence the Court will require before it will set the judgment aside. The affidavits must be clear and free from all ambiguity (De Montmorency v. Pope, 2 Ir. Jur. O. S. 213); and in many cases the defendant has been put under terms to prosecute the process server (O'Farrell v. Burke, I. R. 2 C. L. 82; Mitchell v. Smith, 6 Ir. Jur. N. S. 373); in which case the Court refused to grant the defendant the costs of the prosecution. Where, however, the process server is dead, or it appears he must have been mistaken, relief will be granted, if the Court is satisfied that service was not effected (Henessy v. Wall, 6 Ir. L. R. 205); and see Mosely v. Blake, 28 L. J. Ex. 35; Fallon v. Cox, Cooke & Alc. 24; in which latter case the process server had been acquitted. Prosecuting. the process server. Affidavit of Defendant must be within the jurisdiction. Due and reasonable diligence. Service on servant of defendant. Service on Corporations. c. 76, s. 16. When the Court is satisfied that service has not been effected, and the defendant has applied in proper time, the judgment will be set aside without an affidavit of merits (Martin v. Williams, Ir. R. 3 C. L. 5), although formerly such an affidavit was frequently required. (f) In order that the plaintiff may be able to proceed under this section, it is absolutely necessary that the defendant should be within the jurisdiction (Tisdall v. Humfreys, Ir. R. 1 C. L. 1), referred to above. (g) The question of when due and reasonable diligence has been exercised in endeavouring to effect personal service, upon the circumstances of each case. one which depends to make three calls on different days at the defendant's residence. Formerly it was considered necessary however, absolutely necessary that the process server should adopt this It is not, course (See Tomlinson v. Goatly, L. R. 1 C. P. 230). (h) Where the service was effected upon a servant of the defendant, near his dwelling-house, it was held to be insufficient (Grady v. Kearney, 8 Ir. C. L. R. App. 44). 33. Service of any such writ of summons and plaint issued against a corporation aggregate (1) may be effected either 15 & 16 Vict. by delivery of a copy of such writ to the mayor or other head officer in person, or to the town clerk, treasurer, or secretary of such corporation (j); and service of any such writ issued against the inhabitants of a barony, half barony, or other like district, may be effected by delivery of such copy to the acting high constable thereof, or any one of the acting high constables thereof, in person; and service of any such writ issued against the inhabitants of any county or any city or town, or the inhabitants of any franchise, liberty, city, town, or place, not being part of a barony or other like district, may be effected by delivery of a copy thereof to some peace officer or other known and responsible officer thereof, in person; and if any such defendants shall not appear and take defence according to the exigency of such writ, in due time after such service thereof, upon affidavit made as hereinafter provided of such personal service of such writ, and of the publication of the notice hereinafter provided, it shall be lawful for the plaintiff to proceed thereon as is hereinafter provided: provided always, that in all such cases a sufficient notice of the issuing of the writ shall be given in the Dublin Gazette, and in one of the local newspapers of the county, city, or district, in which the defendant or defendants, or the officer or agent to be served, shall reside, the days for filing an appearance and defence to run in such cases from the day of the publication of such notice in the Gazette or newspaper, whichever shall be the latest. where Cor (i) This section only applies to cases where the company is within the Section apjurisdiction. Where the company is to be considered as residing without plies only the jurisdiction, the service will have to be effected under the 34th section, poration and, unless the order directs it, there will be no necessity to advertise in the within jurisGazette (Mape v. London & N. W. Rly. Co., Ir. R. 1 C. L. 563). As'to where a Corporation is to be considered as residing, see sect. 9, ante, note (1). diction. Service on Railway, The Companies' Clauses Consolidation Act, 8 Vict. c. 16, sect. 135, provided that service of a writ upon a Railway Company should be effected by serving the secretary; but this provision has been held to be repealed by the above section. (M‘Namara v. Waterford & Limerick Rly. Co., 1 Ir. Jur. N. S. 125; Moore v. Belfast and Ballymena Rly. Co., 6 Ir. C. L R 441). In the former case, however, a judgment having been marked, the Court refused to set it aside in consequence of the defendants' delay. Section 62 of the Companies' Act, 1862, 25 & 26 Vict. c. 89, does not On Joint apply to the service of a writ of summons and plaint. The writ must, therefore, be served upon a Joint Stock Company, incorporated under that Act, in the manner directed by the present section. Stock Com pany. Company dissolved. If a Company be dissolved, service cannot be substituted by serving the Where ex-secretary, or other officer (Fuyle v. Kingstown Water Works Co., 7 Jur. N. S. 397: S. C. 14 Ir. C. L. R. App. 10). Ir. (j) Service on a director of a Company is not equivalent to service on the Secretary (Towne v. Limerick Steam Ship Company, 5 C. B., N. S., 730). Poor Law The proper mode of serving the Guardians of a Poor Law Union is by Service on serving the treasurer and the clerk, and publishing (White v. Adair, 3 Ir. C. L. R. 109). 34. In case it shall be made to appear by affidavit, to the satisfaction of the Court in which the action is attached, or, in vacation, of any Judge of any of the said Courts, that any defendant in any summons and plaint, the cause of action in respect of which the same shall have issued having arisen within the jurisdiction of the Court (1), has not been served with the writ of summons and plaint in the manner hereinbefore prescribed, and has not, according to the exigency thereof, appeared and taken defence to the action, and that due and proper means (m) were used to serve such writ in the manner aforesaid, or that such defendant is out of the jurisdiction of the Court (n), and can be properly served through or upon any agent or representative, or any manager of the real or personal estate of such defendant within such jurisdiction (0), or has removed to avoid service, or on any other good and sufficient grounds, it shall be lawful, upon an application made at any time while the said writ shall be in force, for such Court or Judge to authorize such substitution of service through the Post Office, or in such manner and with such extension of time for service and defence as to Courts may stitution of direct sub service. Substitution of service. In actions of Cases where substitution may be obtained. Where defendant within jurisdiction. Where defendant out of jurisdic tion. Old practice. within them or him shall seem fit (p), and the taxing officer shall allow reasonable costs (pp) on such proceedings for substituting service or effecting such service as the Court shall have directed or deemed good; and in default of an appearance and defence by such defendant in due time it shall be lawful for the plaintiff to proceed thereon as is herein-after provided. (k) When service of the writ cannot be effected in the manner precribed by the previous sections the plaintiff may apply to the Court or a Judge for an order to substitute service under this section; and in cases where the defendant is out of the jurisdiction of the Court, it will be observed that the plaintiff has no other mode of proceeding, as he cannot serve the writ personally out of the jurisdiction, without an order of the Court (sect. 31); and as the Court has no power (in actions other than actions of ejectment) to authorize service out of the jurisdiction except under this section (Dickson v. Capes, 11 Ir. C. L. R. 345). In actions of ejectment the power of the Court to direct a substituted service is not derived under this section, but under section 197 of the Act. post, and sections 56, 57, and 74, of the Landlord and Tenant Act, 1860 (Poole v. Griffiths, 14 Ir. C. L. R. App. 20). The cases in which an order to substitute service can be obtained under this section may be divided into two classes: 1. Where the defendant is within the jurisdiction; 2. Where he is out of the jurisdiction. In the first of these classes of cases the order to substitute service is, in general, absolute in the first instance; in the other, it is conditional. 1. When the defendant is within the jurisdictiction, the plaintiff, if he seeks to substitute service, must show: 1st. That the cause of action arose within the jurisdiction, (vide note (1) infra); 2nd. That the defendant has not been served, and has not appeared and taken defence; and 3rd. That due and proper means were used to serve the writ in the manner prescribed by the former sections of the Act, (vide p. 32, note (m)). 2. When the defendant is out of the jurisdiction, the plaintiff, if he seeks to substitute service, must show: 1st. That the cause of action arose within the jurisdiction, (vide note (1) infra); 2nd. That the defendant is out of the jurisdiction, (vide p. 32, note (n)); 3rd. That the defendant can be properly served through some agent or representative, or some manager of his real or personal estate within the jurisdiction, (vide p. 32, note (o)); or 4th, has removed to avoid service. Previous to the passing of the Act, considerable doubts were entertained whether the Court had power under the old Act, 43 Geo. 3, c. 53, s. 7, to substitute service on a defendant out of the jurisdiction (Burke v. Quinlan, 3 Ir. L. R. 310), although ultimately it was held that it had (Phelan v. Johnson, 7 Ir. L. R. 527). "Cause of (1) The phrase "the cause of action having arisen within the jurisdiction action arising of the Court" is one, the construction of which has given rise to some difjurisdiction." ficulty both in this country and in England, where similar words, though of wider import, occur in section 18 of the C. L. P. Act, 1852. Thus it has been held by the Courts of Queen's Bench and Exchequer in England that the meaning of the phrase is that the entire cause of action should have arisen within the jurisdiction (Sichel v. Borch, 2 H. & C. 954; Allhusen v. Malgarejo, L. R. 3 Q. B. 340); in which latter case a contract having been English cases. |