1803. Νου. 11. A defendant residing out of the jurisdiction, had given a power of attorney to P. to act for him in the management of his af. fairs: The court refused SMITH v. THE HIBERNIAN MINE COMPANY. ON a former day, Mr. Fitzgerald had moved that ser upon vice one Parker of a subpœna to appear and answer, directed to the defendant Holmes should be deemed good service, on an affidavit stating that Holmes had gone to rereside at St. Helena, but had given a power of attorney to Parker to act for him in the management of his affairs. The court doubted whether the motion could be entertain to allow substi- ed, and it stood over to this day, when tution of ser vice of sub pœna to appear and answer on P. Mr. Fitzgerald mentioned the case of Carter v. De Brune, Dick. 39, where service of a subpœna on a person who transacted matters under a letter of attorney from the defendant, was deemed good service, though opposed. In Hales v. Sutton, Dick. 26. Defendants who were executors, living abroad, gave a letter of attorney to a person to prove the will, and service on that person was held to be good. So, in Hyde v. Forster, Dick. 102, service on an agent or factor of the defendants, was held to be good. He referred also to 6 Ves. jun. 171, and 5 Ves. jun. 147, and to a case of Archdeacon Leslie v. —— where Lord CLARK had allowed substitution of service on an agent, the priucipal being in the East Indies, but had given him two years to answer. The Lord CHANCELLOR. I think the legislature has decided this question: it has in several instances substituted service, an interference which would be wholly unnecessary if this court had power to do way, it. The court has indeed substituted service in several In the case of an injunction bill, the attorney at law is an agent constituted by the party making the demand for the purpose of prosecuting that demand at law, and the suit in equity is a defence to that demand. And the case of an executor, cited by Mr. Fitzgerald, seems to me much of the same description: persons living abroad prove a will by means of their attorney for the purpose of possessing themselves of assets which are liable to the demand of the person who sues in equity: the proceedings are at the moment under the direction of their agent, who must have an immediate correspondence with the principals for that purpose this is a case which possibly on principle can be supported, though it is a new one to me. But I do not see how the present motion can be entertained consistently with the declarations of the legislature on the subject; and the constant habit of courts of equity in England within my memory is contrary.(a) (a) In Bond v. The Duke of Newcastle, 3 Bro. Ch. C. 386, service of subpoena on defendant's clerk in court was held not to be good service, though defendant was out of the jurisdiction, and though he had by that clerk in court filed a bill relative to the same subject. And in Anderson v. Lewis, 3 Bro. Ch. C. 429, where there was cause and cross cause, and the plaintiffs in the original cause numerous, and some of them out of the jurisdiction, some that could not be found, and some peers of the realm, a motion to substitute service on the clerk in court was refused. In this case Lord THURLOW said "that for the purpose of an injunction bill, service upon an attorney at law has been held good service, but in no "other case." 1803. SMITH V. THE HIBER NIAN MINE 1803. SMITH v. This question was argued before Lord THURLOW, ON these circumstances. A person executing a mortgage inserted a covenant that if the mortgagee should be desirous THE HIBERof filing a bill of foreclosure after a certain time, service of NIAN MINE COMPANY. the subpæna on a person there named should be good service: and on that ground an application was made to Lord THURLOW, to substitute service, the mortgagor having gone to the East-Indies. But the answer of Lord THURLOW was, 'I can no more try the fact whether there is such a covenant without having the party before me, than I can 'decide any other facts without the parties being before 'me.' And I remember his reasoning was that the substitution of service directed by the legislature in several cases would be quite unnecessary, if this practice were allowed. That case was discussed with a considerable degree of attention, and I should imagine that those cases published by Mr. Dickens were cited: but Lord HARDWICKE himself must have altered his opinion since the time when those cases were decided. Mr. Dickens was a very attentive and diligent register, but his notes, being rather loose, were not considered as of very high authority; he was constantly applied to, to know if he had any thing on such and such subjects in his notes; but if he had, the register's books were always referred to. Carter v. De The ordinary practice of courts of equity in England when one party is out of the jurisdiction and other parties within it, is, to charge the fact in the bill, that such a person is out of the jurisdiction, and then the court proceeds against the other parties, notwithstanding he is not before › it. It cannot proceed to compel him to do any act, but it can proceed against the other parties, and if the disposition of the property is in the power of the other parties, the court may act upon it. I remember a case, which I think is reported in Brown, (a) where a bill was filed to sell an estate for payment of debts, and the heir at law, who was entitled to the surplus after payment of debts, was out of the jurisdiction. The court ordered the estate to be sold for payment of debts; the heir might file a bill to set aside the proceedings if they were erroneous: and there the gentleman, the heir at law, had a mother and sister living in England, and in the habits of corresponding with him; yet there was no conception of substituting service. I think this is a very important subject, and extremely fit for the legislature to take up, but I must refuse the mo tion. (a) Vid. Williams v. Whinyates, 2 Bro. Ch. C. 399. 1803. SMITH V. THE HIBER NIAN MINE COMPANY. GENERAL RULE. THE RIGHT HONOURABLE THE LORD HIGH CHANCELLOR is this day pleased to order, that in future, in all cases where a defendant shall submit to answer exceptions before an order of reference, the plaintiff shall be entitled to the stamp duties in addition to the usual costs according to the course of the court: and that in case such exceptions shall be referred to the master, the master shall tax the costs to the plaintiff of the exceptions allowed, and to the defendant the costs of the exceptions disallowed, and strike the balance to be paid by the party, and from whom it shall appear to be due. Reg. Lib. (Mat.) lxxvii. 143. Nov. 12. Costs upon exceptions where submitted to before order of reference; and where some exceptions allowed and others disallowed upon reference. 1803. Nov. 30. A creditor coming in to prove his debt after a dividend made, (provided the delay was not frau- owing to acci- IN THE MATTER OF WHEELER, A MR. O'DRISCOLL moved on behalf of a creditor, for liberty to prove his debt and to be paid equally with the other creditors who had already received one dividend. The petition and affidavit on which the application was grounded, stated that the petitioner had been prevented by the casualty of his solicitor's being killed in the rebellion of 1798, and by the disturbances which then took place, from proving his debt: the commission had issued in 1796. The commissioners had deferred making a final dividend, in order that this motion might be made. Lord CHANcellor. I have observed a practice here different from that in England :-That where a creditor comes forward to prove after a dividend has been made, he is not allowed any benefit of that dividend, but is only admitted to receive his share of the future dividends. I do not think this is warranted by the statute: It may be that a creditor has kept back from some fraudulent intent, or with a view to delay the proceedings; in such a case the practice may be proper: but where every thing on the part of the creditor has been fair, and the delay is occasioned by accident or unavoidable circumstances (as for instance, in the case of a foreign creditor who cannot have received notice in time) the commissioners ought to apply the fund in the first place to put such creditor on a footing with the others; if the effects are not sufficient for that, the other creditors can have no further di |