Indorse ment of service. Generally. 13. The person serving a writ of summons shall, within 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 applies also to an amended writ (The Cassiopeia, ORDER X. SUBSTITUTED SERVICE. Every application to the Court or a judge, under Order IX., Rule 2, 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. This rule of course only applies to an action in personam. By A. C. Act, 1861, s. 20, if reasonable efforts to effect service have been made, and the person to be served is aware of the writ, or wilfully evades service, then application is to be made to the judge. (See App. I., p. xxviii). Service out of jurisdiction. ORDER XI. SERVICE OUT OF THE JURISDICTION. 1. Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a judge whenever the whole or any part of the subject-matter 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will, or thing affecting such land, stock, or property, and whenever the contract which is sought to be enforced or rescinded, dissolved, annulled, or otherwise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action, was made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 when ever 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. la. Whenever any action is brought in respect of any contract which is sought to be enforced or rescinded, dissolved, annulled, or otherwise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action, when such contract was made or entered into within the jurisdiction, or whenever there has been a breach within the jurisdiction of any contract wherever made, the judge, in exercising his discretion as to granting leave to serve such writ or notice on a defendant out of the jurisdiction, shall have regard to the amount or value of the property in dispute or sought to be recovered, and to the existence in the place of residence of the defendant, if resident in Scotland or Ireland, of a local Court of limited jurisdiction having jurisdiction in the matter in question, and to the comparative cost and convenience of proceeding in England or in the place of such defendant's residence; and in all the above-mentioned cases no such leave is to be granted without an affidavit stating the particulars necessary for enabling the judge to exercise his discretion in manner aforesaid, and all such other particulars (if any) as he may require to be shown. See ante, O. ii., r. 5, note. Rule 1 applies also to third parties, to whom notice is given under O. xvi. (The Swansea Shipping Co. v. Duncan, 1 Q. B. D. 644; 45 L. J. Q. B. 638). service out 3. Every application for an order for leave to serve such writ or Leave for notice on a defendant out of the jurisdiction shall be supported by of the evidence, by affidavit, or otherwise, showing in what place or jurisdiccountry such defendant is or probably may be found, and whether tion. such defendant is a British subject or not, and the grounds upon which the application is made. 4. Any order giving leave to effect such service or give 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. 5. Notice in lieu of service shall be given in the manner in which writs of summons are served. Appear. ance. In district registry. Memorandum of appearance. ORDER XII. APPEARANCE. 1 and la. Except in the cases otherwise provided for by these Rules a defendant shall enter his appearance in London at the Central Office. 2. If any defendant to a writ issued in a district registry resides or carries on business within the district, he shall appear in the district registry. 3. If any defendant neither resides nor carries on business in the district, he may appear either in the district registry or in London. 4. If a sole defendant appears, or all the defendants appear in the district registry, or if all the defendants who appear, appear in the district registry, and the others make default in appearance, then, subject to the power of removal hereinafter provided, the action shall proceed in the district registry. 5. If the defendant appears, or any of the defendants appear, in London, the action shall proceed in London; provided that if the Court or a judge shall be satisfied that the defendant appearing in London is a merely formal defendant, or has no substantial cause to interfere in the conduct of the action, such Court or judge may order that the action may proceed in the district registry, notwithstanding such appearance in London. When a writ is issued from a district registry, and the defendant enters an appearance in London, the memorandum of appearance should recite that the action has been begun in the district registry, its title in that registry, and that the defendant is out of the jurisdiction of that registry (The General Birch, 33 L. T. N. S. 792). 6. A defendant shall enter his appearance to a writ of summons by delivering to the proper officer a memorandum in writing dated on the day of its delivery, and containing the name of the defendant's solicitor, or stating that the defendant defends in person. He shall at the same time deliver to the officer a duplicate of the memorandum, which the officer shall seal with the official seal showing the date on which it is sealed, and then return to the person entering the appearance, and the duplicate memorandum so sealed shall be a certificate that the appearance was entered on the day indicated by the seal. Notice of the appearance must be sent on the same day to the plaintiff's solicitor. (R. 6, April, 1880.) ance An absolute appearance once entered cannot be recalled Appear- When the defendant has thus appeared under protest 7. The solicitor of a defendant appearing by a solicitor shall state Address 8. A defendant appearing in person shall state in such memoran- 9. If the memorandum does not contain such address, it shall not be received; and, if any such address shall be illusory or fictitious, the appearance may be set aside by the Court or a judge, on the application of the plaintiff. t Entry of appearance. Appear. ance by partners. By two or more defendants. Non-entry 10. The memorandum of appearance shall be in the Form No. 6, Appendix (A), Part I., with such variations as the circumstances of the case may require. It has been decided in the Admiralty registry that in an action in rem the names of the parties need not necessarily appear. See O. vii. For this form see App. IV. 11. Upon receipt of a memorandum of appearance, the officer shall forthwith enter the appearance in the cause book. 12. Where partners are sued in the name of their firm, they shall appear individually in their own names. But all subsequent proceedings shall, nevertheless, continue in the name of the firm. 12a. Where any person carrying on business in the name of a firm apparently consisting of more than one person, shall be sued in the name of the firm, he shall appear in his own name; but all subsequent proceedings shall, nevertheless, continue in the name of the firm. 13. If two or more defendants in the same action shall appear by the same solicitor and at the same time, the names of the defendants so appearing shall be inserted in one memorandum. This last rule is of importance, since in actions in rem there may often be several defendants; as to persons who may appear in an action in rem, see r. 17, post. 14. A solicitor not entering an appearance in pursuance of his of appear written undertaking so to do on behalf of any defendant shall be ance by liable to an attachment. solicitor. Time of appearance. Interven. tion of 15. A defendant may appear at any time before judgment. If he appear at any time after the time limited for appearance he shall, on the same day, give notice thereof to the plaintiff's solicitor, or to the plaintiff himself if he sues in person, and he shall not, unless the Court or a judge otherwise orders, be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the writ. 17. In an Admiralty action in rem, any person not named in the writ may intervene and appear as heretofore, on filing an affidavit having an showing that he is interested in the res under arrest, or in the fund interest in in the registry. any person the pro perty arrested. The first part of Rule 17 distinctly enunciates what was long a practice in the Court of Admiralty. A sub |