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1803.

SMITH 0. THE HIBERNIAN MINE COMPANY. Nov. 11. A defendant

ON a former day, Mr. Fitzgerald had moved that serresiding out of the jurisdiction, vice upon one Parker of a subpæna to appear and answer,

, had given a directed to the defendant Holmes should be deemed good power of attorney to P. to service, on an affidavit stating that Holmes had gone to react for him in

reside at St. Helena, but had given a power of attorney to the manage ment of his af. Parker to act for him in the management of his affairs. fairs : The

The court doubted whether the motion could be entertaincourt refused to allow substi- ed, and it stood over to this day, when tution of service of sub. pæna to appear Mr. Fitzgerald mentioned the case of Carter v. De Brune, and answer on P.

Dick. 39, where service of a subpæna 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 CLARE had allowed substitution of service on an agent, the priocipal 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

there is a per

v.

it. The court has indeed substituted service in several 1803. cases where the party may have notice of the proceedings,

SMITH and where, in case he goes out of the way,

THE HIBERson whom he has named in court as his agent, and whom

NIAN MINE the court can look on as such. But a person named agent COMPANY. for a different purpose cannot be looked on in that light.

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 subpoenà 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 6 other case.”

1

1803. This question was argued before Lord THURLOW, on SMITH

these circumstances. A person executing a mortgage in

serted a covenant that if the mortgagee should be desirous THE HIBERNIAN MINE

of filing a bill of foreclosure after a certain time, service of Company. the subpæna on a person there named should be good ser

vice : 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 Brune, Hyde v. Forster, as

diligent register, but his notes, being rather loose, were reported in

not considered as of very high authority; he was constantly Dickens, over

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 y. De

ruled.

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

V.

is reported in Brown,(a) where a bill was filed to sell an 1803. estate for payment of debts, and the heir at law, who was

SMITH entitled to the surplus after payment of debts, was out of the jurisdiction. The court ordered the estate to be sold THE HIBER

NIAN MINE for payment of debts ; the heir might file a bill to set aside COMPANY. 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 motion.

(a) Vid. Williams v. Whinyates, 2 Bro. Ch. C. 399.

GENERAL RULE.

Nov, 12. THE

HE RIGHT HONOURABLE THE LORD HIGH Costs upon exCHANCELLOR is this day pleased to order, that in fu- ceptions where ture, in all cases where a defendant shall submit to answer before order of

reference; and exceptions before an order of reference, the plaintiff shall be where some exentitled to the stamp duties in addition to the usual costs ac- ceptions allowcording to the course of the court : and that in case such disallowed up.

on reference, 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.

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1803.

IN THE MATTER OF WHEELER, A

BANKRUPT. | Nov. 30. A creditor MR. O'DRISCOLL moved on behalf of a creditor, for coming in to prove his debt liberty to prove his debt and to be paid equally with the niade, (provid. other creditors who had already received one dividend. The was not frau. petition and affidavit on which the application was grounded, dulent but stated that the petitioner had been prevented by the casualty owing to acci. dent or una of his solicitor's being killed in the rebellion of 1798, and voidable cir

by the disturbances which then took place, from proving cumstances) shall be put on his debt : the commission had issued in 1796. The coma footing with the other cre- missioners had deferred making a final dividend, in order ditors before

that this motion might be made. any further dividend is 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

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