L.H. Jenkins, J.

1. The sufficiency of service comes constantly before theCourt in dealing with undefended cases, and as it appears to have been thoughtthat I have laid down a rule of practice on the subject beyond the provisionsof the Code, I am desirous of removing that misapprehension.

2. Section 79 provides that "when the serving officerdelivers or tenders a copy of the summons to the defendant personally, or to anagent or other person on his behalf, he shall require the signature of theperson to whom the copy is so delivered or tendered to an acknowledgment ofservice endorsed on the original summons. "Then in Section 80 it isfurther provided that, if the defendant or other person refuses to sign theacknowledgment, or if the serving officer cannot find the defendant, and thereis no agent empowered to accept the service of the summons on his behalf, norany other person on whom the service can be made, the serving officer shallaffix a copy of the summons on the outer door of the house in which thedefendant ordinarily resides and then return the original to the Court fromwhich it issued, with a return endorsed thereon or annexed thereto stating thathe has so affixed the copy and the circumstances under which he did so."

3. It will be seen, therefore, that (leaving out ofconsideration the contingency of there being an agent) the primary method ofservice is by tendering or delivering a copy of the summons to the defendantpersonally and obtaining his acknowledgment. It is obvious, however, that thismode may fail for one of two reasons: either the defendant may refuse to signthe acknowledgment, or it may be impossible to find him, and accordingly amethod of service by affixing a copy of the summons is provided. Apart fromrefusal to sign there are two necessary conditions to the validity of this modeof service: 1st, the serving officer must have been unable to find thedefendant, and 2ndly he must have affixed a copy of the summons "on theouter door of the house which the defendant ordinarily resides" and returnthe original to the Court the manner prescribed by the Code.

4. I will shortly deal with these two conditions. For thepurpose of establishing that the defendant cannot be found it must be shownthat proper effect to find him were made, as, for instance, that the servingofficer went to the place or places and at the times at which it was reasonableto expect he would be found. Then to satisfy the second condition it must beshown that the copy was affixed on the door of the house in which the defendantordinarily resided at the time of service.

5. Whether or not these conditions are established to thesatisfaction of the Court must in each case depend on its own particularcircumstances. These requirements are prescribed by the Code and not by anyrule of practice outside the Code, and having regard to the applications sofrequently made under Section 108, I have always thought it necessary toclosely scrutinize the mode of service on which reliance is placed. In thisparticular case I am satisfied that the service was in accordance with theprovisions of the Code, and is therefore valid.

6. Attorneys for the Plaintiff: Messrs. Sen & Go.

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Rajendro Nath Sanyalvs. Jan Meah (05.05.1898 - CALHC)