insufficiency of service, COCKBURN, C.J. said: "The order is regular on the face of it, and the requirements of the statute have been complied with. The justices might have exercised a discretion which we may regret that they did not exercise. But there is no irregularity, and the court cannot interfere." So, too, HILL, J. said: Everything appears to be regular, according to the statute. The summons was left at the defendant's last place of abode, but he was temporarily absent, and the justices may have treated this excuse of the mother as an idle one."

66

Upon the same point there is the more recent case of The Queen v. Damarell (37 L. J., M. C. 21), in which the facts are these: On the 3rd of October C. F. applied for and obtained a summons against D., as the father of a bastard child of which she was then pregnant, and which was born on the 29th of the same month. On the 4th of the month the summons was left at a house in which D. had lived up to the 1st, upon which day he went away to go to America. He sailed on the 14th, and did not hear anything of the proceedings until about two months after he arrived in America. On the 6th of December following, C. F. appeared in support of the summons; and, after hearing the case, the justices made an order adjudicating D. to be the father of the child, and ordering him to pay money for its maintenance. The order recited that it was proved that the summons had been

duly served, the same having been left at the last place of abode. The defendant having returned to England, the order was brought up for the purpose of being quashed; but it was held that the court could not interfere, there being nothing to show that the order was illegal, although the defendant had had no opportunity of objecting to its being made. In his judgment, Cockburn, C. J. says: "It is very true that the order has been made behind the back of the defendant, when he was on his passage to America, or when he had arrived there, which is certainly more or less inconsistent with natural justice, he having no opportunity of being present at the hearing of the case before the justices; but on the other hand, when we remember that the woman is limited to a period of twelve months from the birth of the child within which she must make her application, so that if the father absent himself for that period, her remedy against him under this statute would be gone, we cannot but see that it would be most inconvenient to hold that the order could not be made by the justices. The Legislature is in fault in not making provision for the case where the father is in such a position, that he should have an opportunity on his return to England of showing that the case ought to be reopened, or else in not providing that where it is necessary that the service should be effected by leaving the summons at the last place of abode of the alleged father, the time should be extended

within which the mother should be at liberty to make the application. By either of such provisions the present inconvenience might have been obviated; but the statute does not contain any such provision, and we can only decide the question upon the words of the statute. We have only to see whether the summons was shown to have been left at the last place of abode of the defendant; and when we look at the facts we find that that cannot be disputed, for the defendant had no place of abode subsequently to going to Tetcott, which he left before going to America. The decision of the justices is therefore within the very terms of the statute." MELLOR and LUSH, JJ. also upheld the decision of the jus~ tices, the latter observing: "I do not think that we have any jurisdiction to set this order aside, unless we see that it was one which ought not to have been made. The statute does not contain any provision to meet the case of a man who is gone abroad, and is out of the way of being served with the summons. Tho justices are, upon proof of the summons being left at the last place of abode, to proceed to adjudicate; they do adjudicate, and what jurisdiction have we to say that they are wrong in making the order? It would be a hardship upon the mother if we were to quash the order; and I see nothing to show that it has been illegally made." There can be no doubt that this is a most important decision, for under its influence many women may be

tempted to palm off illegitimate children upon persons who they know have gone abroad, by taking out and leaving a summons at their last place of abode, with the perfect assurance that they cannot be present at the hearing to resist the application. It is very much to be regretted, however, that upon the argument of this case the attention of the court was not drawn to the decision in Potts v. Cumbridge (29 L. J., M. C. 62, ante, p. 11), supported as it has been by that in Reg. v. Chugg (22 L. T. 556), which decides that if the application for the summons be made within the twelvemonth, the summons itself may be issued and served at any time afterwards, and so the rights of the woman may be kept alive. Had these cases been cited, the court would not have fallen into the error of supposing that if the father absented himself for the period of twelve months, the woman's remedy would be gone. Whether or not, if this case had been cited the decision of the court would have been otherwise, cannot with any certainty be predicated; but it is quite clear that the Lord Chief Justice laid very great stress upon what was supposed to be the hardship upon the

woman.

Proof of Service of the Summons when at the instance of the Guardians.—When a summons is applied for at the instance of guardians of a union or parish under sect. 8 of the 35 & 36 Vict. c. 65, greater strictness in the service is required; the

words being "and upon his appearance, or, in the event of his not appearing, upon proof of due service of the summons upon him, such justices may," &c. In the event, therefore, of the nonappearance of the man, it will be necessary to prove that he was personally served with the summons, or that it was left for him at his actual place of abode. See as to service of a summons generally, Reg. v. Smith (32 L. T. Rep. 394.)

Proof of Service of the Summons out of the District.-The 4th section of the 36 Vict. c. 9, makes provision for the service of the summons when the man resides out of the petty sessional district to which the application is made, and it enacts as follows :-" In cases where the putative father of any bastard child resides out of the petty sessional district where the mother applies for a summons or order of maintenance, it shall be lawful to prove by affidavit in the form referred to in the second schedule to this Act or to the like effect, that such summons or order has been duly served; and any affidavit purporting to be so made and attested, shall be received in evidence, and shall be deemed to be duly made and attested until the contrary be shown."

The service of a summons beyond the limits of England and Wales (i.e., in Scotland) is not due service: (Reg. v. Lightfoot, 25 L. J., M. C. 115.)

Non-attendance of Witnesses.-Should the witnesses who have been duly summoned by either