33
(6)
4. When the defendant is in the service of the Government, the Court may trans- mit a copy of the documents to be served to the head Officer of the office in which the defendant is employed, for the purpose of being served on him, if it shall appear to the Court that the document may be most convenient so served. If the defendant be an Officer or Soldier, the Court shall transmit a copy of the document to the Commanding Officer of the corps to which the defendant belongs, for the purpose of being served on him. The Officer to whom the document is transmitted, after causing the saine to be served on the person to whom it is addressed, if practicable, shall return it to the Court If from any cause with the written acknowledgment of such person endorsed thereon.
the document cannot be served upon the person to whom it is addressed, it shall be returned to the Court by which it was transmitted with information of the cause which has prevented the service. In such case the Court shall adopt such other means of serving the document as it may deem proper.
5. When the suit is against a Corporation or a Company authorised to sue and be sued in the name of an Officer or Trustees, the document may be served by giving the same to any Director, Secretary or other principal Officer, or by leaving it at the office of the Corporation or Company.
1. C. 62.
Newby
**
Van Oppen,
6. When the suit is against a foreign Corporation or Company having an office and carrying on business within the Colony, and such suit is limited to a cause of action which arose within the jurisdiction, the Court may order that the document shall be 26 LT. (N.S.) 164. served by giving the same to the principal officer, or by leaving it at the office of such foreign Corporation or Company within the Colony.
1855, s. 16.
7. When the suit is against a defendant residing out of the jurisdiction, but carrying Ordinance No. 2 of on business in the Colony in his own name or under the name of a firm through a duly authorised agent, and such suit is limited to a cause of action which arose within the jurisdiction, the Court may order that the document shall be served by giving it to such agent and such service shall be equivalent to personal service on the defendant.
8. The Court may direct service to be made out of the jurisdiction in all cases in which the Court is satisfied by affidavit or otherwise that the suit is limited to a cause of action which arose within the jurisdiction.
9. In every such case it shall be lawful for the Court in its discretion to order that 1. C. 66. such service may be effected through the medium of the Post Office, or otherwise, and to fix the time within which an appearance shall be entered by the defendant and to give any other directions with reference to such service which it may think fit, and to receive any affidavit or statutory declaration of such service having been effected as prima facie evidence thereof.
10. Any order for service may be varied from time to time with respect to the mode of service directed by the order, as occasion requires.
Suits to be commenced by Writ of Summons.
IX. Subject to the provisions hereinafter contained as to the institution of R. J. C, 11. special suits and proceedings in certain cases, all suits in the Supreme Court shall be commenced by a general writ of summons to be issued by the Registrar on the filing for a præcipe for the same. The writ shall be prepared by the plaintiff or his attorney, and shall specify the name, description and place of abode of the plaintiff and of the de- fendant so far as they can be ascertained, the subject matter of the claim and the relief sought for, and such writ shall be tested and bear date the day whereon the same shall be sued out. Any alteration in the writ, without leave of the Court, and without being re-sealed before service, shall render the writ void.
Of Summoning the Defendant.
X. The plaintiff shall cause a copy of the writ of summons under the seal of the Court to the served upon the defendant, and such copy shall contain a memorandum endorsed thereon requiring the defendant to enter an appearance to the suit within eight days from the day of such service.
Appearance.
XI. The defendant shall within eight days from the day of service upon him of the writ of summons cause an appearance to be entered for him to the suit in the Supreme Court.
1. C. 111.
0. G. G. L., Aug. 6 1861, Cai. Gaz.,
p. 2581.
R. J. C. 11.
(7)
Consequences of Non-Appearance.
XII. If the defendant shall fail to enter an appearance within the time here- inbefore limited in that behalf, and it shall be proved to the satisfaction of the Court that the summons was duly served, the Court may proceed to hear the suit ex parte.
2. If the defendant appear on any subsequent day to which the hearing of the suit is adjourned and shall assign good and sufficient cause for his previous non- appearance, he may, upon such terms as the Court may direct as to the payment of costs or otherwise, be heard in answer to the suit in like manner as if he had duly entered an appearance within the time limited as aforesaid.
3. It shall not be obligatory on the Court to decide ex parte in the absence of the Defendant, but it shall be at the discretion of the Court to issue a warrant to arrest him and detain him till another day appointed for the hearing of the case, and to attach his property.
Writs specially endorsed.
XIII. In all cases in which the defendant resides within the jurisdiction of the C. L. P. A. 1852, Court, and the claim is for a debt or liquidated demand in money whether founded on
25-27.
See a. 16 of No. 2 of 1855.
a legal or equitable right, the plaintiff shall be at liberty to make upon the writ of suinmons and copy thereof, a special endorsement of the particulars and amount of his clair, and of any interest, payable thereon by law or under any contract expressed or implied, and in default of appearance, he shall be entitled to sign judgment for any sum not exceeding the sum endorsed on the writ together with interest, if any, payable thereon as aforesaid, to the date of the judgment, and the amount of the taxed costs: Provided always that the Court may, nevertheless, let in the defendant to defend upon an applica- tion, supported by satisfactory affidavits accounting for the non-appearance and disclosing a defence upon the merits.
2. If the defendant has appeared, the plaintiff shall be entitled, upon filing an affidavit verifying the cause of action, and swearing that in his belief there is no defence, to take out a summons to show cause why he should not be at liberty to sign judgment, and upon such summons, such order may be made as the justice of the case may require.
3. In like manner, in cases of ordinary account, as in the case of a partnership or executorship, or ordinary trust account, where nothing more is required in the first instance than an account, the writ may be specially endorsed, and in default of appear- ance, or after appearance, unless the defendant shall satisfy the Court that there is really some preliminary question to be tried, an order for the account, with all usual directions, may be forthwith inade.
4. It shall also be lawful for the Court, in such cases, on summary application in chambers or elsewhere, to direct, if it think fit, any necessary inquiries or accounts, notwithstanding it may appear that there is some special or further relief sought, or some special matter to be tried, as to which it may be proper that the suit should proceed in the usual manner.
Proceedings by or against Partnership Firms.
XIV. Proceedings by or on behalf of or against a partnership solely or jointly must be taken in the several names of the partners as individuals, and not in the name of the firm or otherwise: Provided always that where some of the members of a partnership carrying on business within the colony are unknown or are absent from the colony, every such partnership may be sued in the name of any one or more members thereof within the jurisdiction, and every judgment obtained or order made in any such suit shall have the saine effect and operation upon the persons and property both real and personal of such partnership and of the several meinbers thereof, whether such pro- perty be joint or separate as if every member of such copartnership had been actually and in fact a defendant in the action, and had been duly served with process, and every such judgment or order may be enforced as in ordinary cases of the like nature.