1840. Nicholson v. Peile. until the day after the expiration of the three weeks mentioned in the first order which was the reason of the default in not amending within the time. Mr. George Turner for the motion:-The plaintiff having failed in the performance of his first undertaking, had no right to get a second order as of course giving him further time to amend, otherwise, by obtaining a series of such orders, a defendant might be indefinitely delayed, without the possibility of relieving himself therefrom, as he could not put in an answer pending an order to amend. A demurrer being put in, the plaintiff has submitted to it, and on certain terms he has been allowed the indulgence of amending his bill; he must strictly comply with his undertaking, and upon his default, either the demurrer ought to be considered as allowed, or the defendant ought to have the judgment of the court allowing it with costs. Mr. Pemberton and Mr. Koe, contra :-By the thirteenth general order (1831,)(a) the plaintiff has liberty, once only after an answer has been filed, to obtain an order of course to amend his bill; but by the fourteenth order (1828,)(b) there is no limit to the number of such orders of course, which he may obtain before answer; he must undertake, however, to amend within three weeks this undertaking has reference only to the right of the defendant to move to dismiss for want of prosecution. In ge- [*499] neral, a plaintiff obtains as many orders of course to amend as he pleases, provided no answer has been filed; and unless the demurrer in this case be considered an answer, the second order is not irregular. If the plaintiff had amended under the first order, he might (provided no answer had been put in) have obtained a further order of course to amend his bill, and he cannot be in a worse condition than he would have been in if he had amended imperfectly. Mr. Turner, in reply. THE MASTER of the Rolls:-I do not think I can grant this application. By the fourteenth order, the effect of not amending within the time is, that the order becomes void as regards a motion to dismiss for want of prosecution; so far the undertaking was intended for the benefit of defendants. This practice of obtaining several orders to amend as of course may be open to great abuse, and when abuse is discovered a remedy will be applied. The affidavit here shows that none was intended, and that the delay arose from consel not having completed the amendments. I must refuse the application, but without costs. (a) 1 Russ. & My. 769. (b) 2 Russ. app. 9. [p. 642, of this ed.] 1840-Morrice v. Swaby [*500] 1840: May 13, 14. *MORRICE V. SWABY. A defendant by his answer stated, that he had hand d over some documents relating to the matters in question to his agent in Jamaica, to enable him to defend a suit there. That the agent had left the island, and that the documents had been taken possession of by a receiver appointed by the Court of Chancery there: Held, that the admission entitled the plaintiff for an order for production; but liberty was given to the defendant to relieve himself, if possible, by affidavit from the effects of this admission. THIS was a suit instituted in respect of a property in Jamaica. The defendant, the executor, in his answer, after stating the institution of a suit in that colony in respect of the same matter, said, "that in order to enable his agent in the said island to render on defendant's behalf all such accounts as defendant was liable to render in respect of the testator's real and personal estate, he, defendant, sent to his said agent sundry books, accounts," &c., relating to the estate, "which were in defendant's possession." "That his said agent some time since left the said island without having returned to defendant the said books, accounts, &c., and that, therefore, the said particulars were taken possession of by a person who had been appointed receiver of the testator's real and personal estate, or some part thereof, by an order of the said Court of Chancery in Jamaica, made in the hereinbefore mentioned suit, and the defendant believed that the said several particulars were now in the said island of Jamaica." He subsequently stated that he kept no list of the documents so sent to Jamacia, and that, save as appeared by the third schedule, he had not now, nor had he ever, in his possession, custody, or power, any document, &c., relating to the testator's estate, and that he had in the third schedule set forth the best list he was able of all such particulars, by the bill inquired after, as were then, or ever had been, in his possession, custody, or power. *The third schedule was as follows:-" An account book; an account current book; a journal and sundry accounts and vouchers which have been transmitted from time to time by this defendant to Jamaica; a bundle of vouchers, numbered 1 to 25 inclusive; sundry accounts and documents, numbered 26 to 32." [*501] Mr. Pemberton and Mr. Bagshawe moved for the production of all the documents in the third schedule. Mr. Kindersley and Mr. Bazalgette contended that no order for the production of the documents in Jamaica ought to be made, as there was no sufficient admission of their possession; Farquharson v. Balfour(a) was cited. May 14.-THE MASTER OF THE ROLLS: In Farquharson v. Balfour, which was cited, the defendant stated he had not papers in his power for a (a) Turn. & Russ. 190, 191. 1840.-Dodd v. Webber. reason which showed that they were. Here the effect of the answer is this, the defendant had the papers in his possession or power, and delivered them to his agent and they were taken out of the possession of the agent by another person whom the defendant calls the receiver. They are now in the hands of the same person, and from the latter part of the answer connected with the former, I must presume that they are now in the possession or power of the defendant. I think, however, from what is stated, that the defendant ought to have leave to remove the effect of this admission by affidavit. I must make the order for the production of those documents, unless the defendant satisfactorily shows by affidavit that the documents in question are so circumstanced as not to be in his possession, custody, or power.(a) 1810 March 25, May 9, 13. *DODD v. Webber. [*502] Service abroad of a subpæna to appear, ordered under the 4 & 5 W. 4, c. 82, in a case where English funds were alleged to have been improperly sold out and invested in Austrian stock and Portuguese bonds. The defendant having made default in entering his appearance, and the service of the subpœna and order having been properly authenticated, the court under the above act, ordered an appearance to be entered by the six clerk. MR. ROUPELL moved ex parte that service of a subpœna in France upon one of the defendants residing there might be good service under the act of the 4 & 5 W. 4, c. 82. The application was supported by affidavit, stating that the property which was the subject of this suit was a sum of 14,0001. consols, sold by the defendants, the trustees, and improperly invested in Austrian stock, Dutch government bonds, and Portuguese government bonds, and which were inscribed in the government books of the several countries; it stated[1] also that service of the subpoena might be authenticated by Her Majesty's consul at Paris. THE MASTER OF THE ROLLS ordered, "That personal service, within three months, upon the said defendant at Paris, or at Charenton near Paris, all in the kingdom of France, of a subpœna to appear to and answer the plaintiff's bill returnable in three weeks from the time of such service, might be good service, upon such service being proved by affidavit to be sworn before Her Majesty's consul at Paris." May 13.-The above order and the subpæna were served at Paris, but the (a) Parsons v. Robertson, 2 Keen, 605. [606, n. 1. 1. Keen, 357, n. 1. In regard to the subject of the production of papers, by order of the court, the Editor can only refer to his remark in a note, to 1 Beav. 142, (n. 2.) It is believed that the editorial notes there referred to, contain either a statement of, or reference to, nearly all the more recent English decisions upon the subject; certainly, all which the Editor was aware of. [1] Prayed. Quære? 1840.-Kinder v. Forbes. defendant made default in entering his appearance; whereupon the service of the above order and of the subpœna at Paris having been properly verified by affidavit sworn before the British consul there, and the signature [*503] of the consul being also verified, it was now moved ex parte, by Mr. Roupell, under the 4 & 5 W. 4, c. 82, that one of the clerks in court should enter an appearance for the defendant. He cited an unreported case of M'Kellar v. M'Kellar, before the Vice-Chancellor. THE MASTER OF THE ROLLS granted the application, and ordered, “That Mr. Smith, one of the sworn clerks, do enter an appearance for the said defendant." NOTE.-See 1 Daniel's Pr. 681, n. (e), and Godson v. Cooh, 7 Sim. 519. 1840 April 23, May 16. KINDER V. FORBES. An order that service of a subpœna to appear and answer upon the defendant's partners at the house of business, the defendant himself being abroad, Held, under the circumstances to be regular. THE bill in this cause was filed to set aside certain mortgage securities held by the defendant, and to prevent the further receipt by him of several annual sums comprised therein, amounting to 2251., which, by an order made in another suit, had been directed to be paid to him by the receiver in that cause. The defendant was a practising solicitor, in partnership with Messrs. Hale, Boys & Austin, in Ely Place, but he had gone abroad during the last year, and was at present in Italy, and had no dwelling house in this country. The transaction in respect of which this suit was instituted was not a partnership transaction, but the annual sums comprising the 2251. had been received for the defendant by his partners during his absence from the receiver. The defendant's partners having declined accepting the service of the subpœna to appear and answer; the court on the 25th of March, 1840, [*504] on the motion of the plaintiff, "ordered, that service of a subpœna to appear and answer the plaintiff's bill on Messrs. Hale & Co., at Ely Place, should be deemed good service on the defendant. The defendant having agreed to enter a conditional appearance with the Registrar, now moved to discharge the order. Mr. C. P. Cooper and Mr. James Russell, in support of the motion:The order which has been made ex parte is not authorized by the practice of the court; there are, it is true, two authorities in its favor, viz: Carter v. De Brune, (a) where service of a subpoena, on a person who transacted mat (a) 1 Dick. 39. 1840.-Kinder v. Forbes. ters under a letter of attorney from the defendant, was ordered to be good service; and Hyde v. Forster,(a) where an order was made directing service on the agent and factor in England of the defendant living abroad to be good service; but the authority of these cases was expressly denied by Lord Redesdale in Smith v. The Hibernian Mine Company ;(b) in that case a defendant residing out of the jurisdiction had given a power of attorney to P., to act for him in the management of his affairs, and the court refused to allow substituted service of a subpoena to appear and answer on P.; Lord Redesdale saying, " 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 it." Orders for such service have been refused in much stronger cases than the present: thus in Bond v. The * Duke of Newcastle,(c) where [*505] defendants were beyond the jurisdiction of the court, service of the subpoena on their clerk in court could not be allowed to be deemed good service, though they had, by their clerk in court, filed a bill relative to the same subject; so in Roberts v. Worsley(d) the court refused to order service on the clerk in court in the original bill of a defendant out of the jurisdiction to be good service of the subpoena to appear and answer the same bill when amended; and in the case of cause and cross cause a like application has been refused; Waterton v. Croft.(e) Two acts of Parliament,(g) have passed for enabling parties to serve subpœnas where the defendant is out of the jurisdiction, which would have been useless if this order be correct. The plaintiff, if at all, inust proceed under those acts; and there is no suggestion that the defendant has withdrawn himself to avoid service. Mr. Pemberton and Mr. Roupell, contra, contended that the order was regular; that by the practice of the court personal service of a subpœna was not necessary; for by the general rules of the court a subpoena is well served by leaving a copy of it and of the endorsement thereon at the dwelling house of the defendant, and producing the original writ to the person with whom the copy is left; Davidson v. Marchioness of Hastings ;(h) that here service had been directed at the defendant's office, which was equivalent to a service at the dwelling house of the party. *That the present case did not come within the statute referred to, [*506] which, in practice, had been found to be a dead letter, as it did not provide for the steps to be taken consequent on the service of the subpæna. Mr. Cooper, in reply:-The statute provides a remedy in the particular cases therein stated, but has not removed the inconvenience in other cases. The effect of substituting service is most harsh on a defendant; the writ is returnable in four days, and before any notice can be given to a defendant |