and still remained, resident at Edinburgh, in Scotland, out of the jurisdiction of this Court, and had no residence except in Scotland, and that he did not and never did reside at No. 38, Watling Street; that the defendant was a Scotsman, and had to the best of the deponent's belief resided all his life at Edinburgh, and carried on his business as a carrier there; and that the business carried on at No. 38, Watling Street, was only that of a branch office for the receipt and despatch of goods and merchandises to all parts of the country. The only deponents were the defendant's attorney, and one Rutherford, who described himself as of "No. 38, Watling Street, in the city of London, carrier's agent," but who was stated to be the defendant's manager.

Hesketh v. Fleming, 24 Law J., Q. B. 255, was relied on as a governing authority. It was there held by Coleridge, J., that, if a writ of summons be issued for *service within the jurisdiction. *818] against a defendant supposed to be resident in England, and a Judge's order be obtained to allow the plaintiff to proceed to judgment if no appearance be entered by a specified time, on affidavits showing that reasonable efforts have been made to effect service, but in vain, and that the writ has come to the defendant's knowledge, the defendant is entitled to have the order set aside, on his showing that he has been resident out of the jurisdiction ever since the issuing of the writ. Parties resident in Scotland or Ireland are expressly excluded from the operation of the 18th section of the Common Law Procedure Act, 1852.

Kingdon showed cause in the first instance, relying upon the affidavit used at Chambers and a further affidavit verifying the defendant's business card, in which he described himself as carrying on business as a carrier at No. 38, Watling Street, under the name of John Howey & Co. The 17th section of the Common Law Procedure Act, 1852, after enacting that the service of the writ of summons, wherever practicable, shall be personal, goes on to provide, that, "in case it shall appear to the Court or a Judge that reasonable efforts have been made to effect personal service, and either that the writ has come to the knowledge of the defendant, or that he wilfully evades service of the same, and has not appeared thereto, it shall be lawful for such Court or Judge to order that the plaintiff be at liberty to proceed as if personal service had been effected, subject to such conditions as to the Court or Judge may seem fit." Whatever be the proper construction of the words "residing or be supposed to reside," in the 2d section of the Common Law Procedure Act, the defendant has so held himself out as residing in England as to estop him from now *controverting the fact. His card amounts to a repre*819] sentation that he resides or is to be met with at No. 38, Watling Street. He himself makes no affidavit; and, though his agent, Rutherford, swears that the defendant resides in Scotland, he does not swear that he does not occasionally reside in England. It is perfectly onsistent with all that is stated, that the defendant may have two residences, one in Edinburgh, the other in London. In Butler v. Ablewhite, 6 C. B. N. S. 740 (E. C. L. R. vol. 95), it was held that a man may have two permanent places of residence, either of which would satisfy the concurrent jurisdiction clause of the County Court

Act; and in Curtis, app., Blight, resp., 11 C. B. N. S. 95 (E. C. L. R. vol. 103), it was held that an objector (under the Registration of Voters Act) who has at the time of signing the notice of objection bonâ fide two places of abode, may describe himself as of either. In Ablett v. Basham, 5 Ellis & B. 1019 (E. C. L. R. vol. 85), where an attorney sued in person, it was held that he was properly described, under s. 6 of the Common Law Procedure Act, 1852, as of the place where he carried on his business. In Blackwell v. England, 8 E. & B. 541 (E. C. L. R. vol. 92), the execution of a bill of sale was attested by a witness who signed as "W. R. C., clerk to Messrs. B. & R., solicitors, Temple.' It was in due time filed together with an affidavit which commenced, "I, W. R. C., clerk to Messrs. B. & R., of the same place, solicitors, make oath and say," &c. In the body of the affidavit it was stated that the bill of sale was executed in the presence of the deponent; but there was no further description of the residence of the attesting witness. On the trial of a feigned issue, to try whether the bill of sale was valid against an execution-creditor, it was proved that W. R. C. was clerk to the solicitors, whose office was in King's Bench Walk, that all his business hours were passed there, and that it was the place where he would be most readily heard of, but that he took his meals and slept elsewhere. It was held that the descrip[*820 tion of the residence was sufficient to satisfy the requirements of the 17 & 18 Vict. c. 36, s. 1. (a) [WILLES, J., referred to Wilson v. The Caledonian Railway Company, 5 Exch. 822.t]

Francis, in support of his motion.-None of the cases cited have any application: in all of them the description of the party was obviously the proper one. Mere address, however, will not do. In Simpson v. Ramsay, 5 Q. B. 371 (E. C. L. R. vol. 48), "to be heard of in London at Peele's Coffee-House" was held not to be a good description of a defendant's residence within the 2 W. 4, c. 39, s. 1. "The service," said Wightman, J., "must be made in the county in which the defendant is described in the writ as residing, and not elsewhere. Has that been done in this case?" The present case is clearly within the judgment of Coleridge, J., in Hesketh v. Fleming, where he observes, "It was said that the Act of Parliament contemplated the issuing of the writ of Sched. A. No. 1, in the case of an actual and of a supposed residence of the defendant within the jurisdiction, and that this was a case of supposed residence; and that, if the order is to be set aside, to what purpose are the words 'supposed residence' introduced in s. 2? The answer to be given to that observation, I think, is, that those words were inserted to meet the case of a party who believes that the defendant resides within the jurisdiction, though he cannot swear positively to the fact of his residence." The affidavits, it is submitted, abundantly negative the fact of the defendant's having any other place of abode than Edinburgh at the time of the issuing of the writ. *ERLE, C. J.-I am of opinion that there should be no rule [*821 in this case, it being clear to my mind that there was jurisdic tion to issue the writ. The language of the 2d section of the Common Law Procedure Act, 1852, which authorizes the issuing of the writ of summons, is very wide. It enacts that all personal actions brought in Her Majesty's superior Courts of common law, where the (a) And see Attenborough v. Thompson, 2 Hurlst. & N. 559.†

defendant is residing or supposed to reside within the jurisdiction of the said Courts, shall be commenced by writ of summons (in the form given in the schedule), and that in every such writ and copy thereof the place and county of the residence or supposed residence of the party defendant, or wherein the defendant shall be or shall be supposed to be, shall be mentioned. All personal actions, therefore, are to be commenced by writ of summons, and may be brought against any person residing or supposed to reside within the jurisdiction of the Courts of England. Now, the word "reside" has a great variety of meanings, according to the subject-matter and the objects and purposes of the legislature. In this section, it was evidently intended to be construed in its largest and widest sense: but, for the purpose of disposing of this motion, I am of opinion that it is not necessary to define its meaning as used in this statute, because the conclusion I have arrived at from the affidavits which have been produced before us, is, that this defendant is on this occasion estopped from saying that he did not reside in London. He held himself out as having business offices in Watling Street, London, where he carries on the business of a common carrier. I think the affidavits disclosed abundant ground to authorize the plaintiff in issuing his writ under the 2d section of the statute. Then, under the 17th section, my Brother Willes had authority to make the order complained of, provided it was made out to his satisfaction *that the writ had come to the defendant's *822] knowledge or that he wilfully evaded service thereof. That section enacts that "the service of the writ of summons, wherever it may be practicable, shall, as heretofore, be personal, but it shall be lawful for the plaintiff to apply from time to time, on affidavit, to the Court out of which the writ of summons issued, or to a Judge, and, in case it shall appear to such Court or Judge that reasonable efforts have been made to effect personal service, and either that the writ has come to the knowledge of the defendant, or that he wilfully evades service of the same, and has not appeared thereto, it shall be lawful for such Court or Judge to order that the plaintiff be at liberty to proceed as if personal service had been effected, subject to such conditions as to the Court or Judge may seem fit." I think, upon the materials which were before him, the learned Judge properly made the order. The defendant now comes to the Court to ask to have that order set aside, and to be exempted from the jurisdiction of the Court. But even now the defendant himself makes no affidavit. I do not say what my decision would have been if the case had simply rested upon the defendant's holding himself out as a person carrying on business at No. 38, Watling Street, London, nor whether his place of residence for the purpose of this statute must necessarily mean the place where he sleeps. It is enough to say, that, upon the affidavits now before the Court, I am not satisfied that the defendant was not in England at the time of the issuing of the writ, and perfectly cognisant of the proceedings against him. The defendant himself, as I before observed, makes no affidavit; and all that his agent Rutherford swears, is, that, at the time of the commencement of the action, and long prior thereto, the defendant was and still remained resident *823] at Edinburgh, out of the jurisdiction of the Court, and had no residence except in Scotland, and that he did not and never

did reside at No. 38, Watling Street; that the defendant is a Scotsman, and has to the best of the deponent's belief resided all his life at Edinburgh, and carried on his business as a carrier there; and that the business carried on at No. 38, Watling Street, was only that of a branch office for the receipt and despatch of goods to all parts of the country. And it must be remembered that this affidavit is made after the defendant's residence had been made the subject of contention. before the learned Judge, and time afforded for further information. Under these circumstances, I am disposed to make every fair presumption against the defendant. If he has chosen to leave the matter in doubt, it is his own fault if he sustains damage therefrom.

WILLES, J.-I am of the same opinion. It appears to me that the affidavits which have been produced on the part of the defendant are quite insufficient to found this application, and that the absence of the defendant's own affidavit is fatal. I am not sure that the 18th section has the effect which Mr. Francis contended for. In order to a right understanding of the 2d, 17th, and 18th sections, it is necessary to compare their language, and not to look at each separately. The 18th. section applies only to the case of a British subject residing out of the jurisdiction of the superior Courts, elsewhere than in Scotland or Ireland (words which were inserted in the bill whilst under discussion in Parliament). If it was intended to restrict him in his proceedings against a person residing in Scotland or Ireland to the course pointed out in the 19th section, which provides for the case of a person residing out of the jurisdiction, not being a British subject, the contention of Mr. Francis would be successful. But *the Courts of West[*824 minster Hall unquestionably possessed jurisdiction by way of outlawry in such a case as this, before the passing of the Common Law Procedure Act. The proceeding under s. 18 is substituted for that. When we look at s. 17, we find a general provision for substituted service in cases where it shall be made appear to the Judge that reasonable efforts have been made to effect personal service, and either that the writ has come to the knowledge of the defendant, or that he wilfully evades service. I see nothing there to confine the words to the case of a service in any particular place. Then, go back to s. 2, where the language of the Uniformity of Process Act, 2 W. 4, c. 39, s. 1, is preserved,-"in every such writ and copy thereof the place and county of the residence or supposed residence of the party defendant, or wherein the defendant shall be or shall be supposed to be, shall be mentioned." The object of the introduction of those words. was, to indicate the county in which the subsequent proceedings were to be taken. The words "or shall be supposed to be" seem to point to a state of things where the residence of the defendant cannot be ascertained, but where there is good reason to believe that he may be found at the place mentioned in the writ. That would seem to include the case of a person carrying on business as if resident in England. There is no ground for thinking that the legislature intended to take away any jurisdiction which existed before. For these reasons, I feel induced by the argument of Mr. Kingdon to change my mind, and to think that the order I made would have been made valid even if the defendant were shown to have been actually residing in Scotland at the time the writ issued. In saying this, however, I desire to be

understood as reserving to myself the opportunity of forming a more deliberate opinion whenever the point may present itself for decision.

*BYLES, J.-I thought, when the case was before me at Cham

*825] bers, that there was considerable difficulty. But, upon further consideration, I think it is quite unnecessary to put any particular construction upon the words "residing or supposed to reside," in the 2d section of the Common Law Procedure Act, 1852. "Residence" has on many occasions been held to be a flexible expression. It is enough for the decision of the present case to say that the defendant on his card represents himself as either sleeping by night or being during the daytime at No. 38, Watling Street, London. He now makes no affidavit, although the case was adjourned for the purpose of affording an opportunity for explanation; and the affidavit of his agent is very vague and unsatisfactory. There being, therefore, no evidence to contradict the primâ facie case on the part of the plaintiff, I think this rule must be refused.

KEATING, J.—I am of the same opinion. The defendant has furnished a primâ facie case against himself.

Rule refused, the costs to be plaintiff's costs in the cause.

END OF TRINITY TERM.