Hyndman-Jones CJ:

In this case there were obvious irregularities in the notice of the writ and in the service of it and the only question is, whether I can treat these as merely irregularities and therefore curable under s. 1339 of the Civil Procedure Code or whether the irregularities are incurable and the notice and service of the notice void.

Two points were relied on in support of the Summons, viz: - (1) That the notice of the writ and the service thereof was bad inasmuch as the order of the Judge directed that an appearance should be entered within one month after the date of the notice, as an alternative. (2) That the service of the notice was not effected in accordance with the provisions of s. 90 of the Civil Procedure Code.

I am of opinion that the defendant succeeds on both points. It appeared from the affidavit of Tan Hood Guan that service was effected on 2 August 1912, whereas the date of the notice was 8 July 1912 the time therefore, for an entry of appearance given by the Judge was within one month from 2 August the time given by the notice was within one month from 8 July; in other words, the notice required an appearance to be entered within six days of the service, whereas the Judge had directed that an appearance should be entered within one month of such service. It was said that Galli v. Mengruel, [1865] LR 1 CP 46, was an old case and decided before the Judicature Acts and the Orders and Rules thereunder, and no doubt that is so; but the case is cited as an authority in the latest edition of the Annual Practice and Byles J, gave as a ground for refusing to allow the Plaintiff to proceed that "the Defendant was led by the endorsement to believe that he was too late to pay the sum claimed," and the whole Court held that the irregularity could not be waived by a subsequent admission of service and an offer to settle. So, in our case, we may say that "the Defendant by the terms of the notice was led to believe that he was too late to enter an appearance," and moreover in our case there has been no subsequent admission of service and an offer to settle. Piggott, also, in his work on "Service out of the Jurisdiction" treats the case as of existing authority; and if we may draw an analogy between the case of a statutory sanction and the case of a Judicial sanction, which, I think, we may, the authorities are clear that, not to follow the sanction strictly is not a mere irregularity but a nullity, and it follows that just as in the case of the Finance Act, 1910, viz: Dyson v. The Attorney General, [1912] 1 Ch. 158, 169, "There was no obligation to make a return at all because the date specified was not the date sanctioned by the Act," so here, there was no obligation to enter an appearance or apply for an extension of time to do so, because the date specified in the notice was not the date sanctioned by the Judge. Such being my view on the first point, it becomes unnecessary to consider the second, but I may say that the affidavit of Tan Hood Guan does not disclose such a service as is required by ss. 90 and 108 of the Civil Procedure Code, while the indorsement required by s. 98 was admittedly not made on the document, because the original, it was said, had been lost in Saigon.

With regard to this latter defect, if the original were in existence, no doubt, the time for endorsing it might be extended (Hastings v. Hurley, WN 1881 p. 39) but, with regard to the former defect, Piggott, citing Hawthorn v. Harris, 23 WR 214, and Phillipson v. Emmanuel, 56 LT 858, also cited at the Bar, says that all subsequent proceedings founded on the writ would be void and not merely irregular.

I am indebted to Mr. Page for directing my attention to the case of Hamp- Adams v. Hall, LR [1911] 2 KBD 942, and I appreciate his frankness in doing so. The case is, of course, later than Hastings v. Hurley, and judgment in default had been signed. The Lords Justices there held that when proceedings are going to be taken again