
    
      Southern Steam Packet Company vs. Thomas J. Roger and others.
    
    A copy left at the residence, is sufficient service of a subpceoa, on a party domicilled in the State and temporarily absent therefrom, unless it is made to appear that he has been surprised.
    Defendant, while abroad, being informed by his agfent that some legal paper was left for him, had such notice as ought to have put him on enquiry. It was not enough that both he and his agent had forgotten the matter before his return, and that he never saw the copy writ. But the court, in the exercise of its discretion,.under the. circumstances of the case, permitted him to appear and defend, on payment of costs.
    The provision, in the 23d Rule of court, “that a day shall be given the defendant to shew cause against” a decree, does not apply where he has, by his default, admitted the cha'rgbs of the’ bill.
    Under the 35th Rule of Court, it is in the Chancellor’s discretion wha't fevi-dence shall be required to prove the demand of a b’ill taken fro confeiiso.
    
    Heard before his Honor Chancellor Harper, at Charleston,'
    A bill was filed, by the “Southern Steam Packet Company,’’ to compel certain subscribers to pay their shares. Among the defendants, to whom writs of subpoena were directed, Was Thomas J. Roger. The copy,of the subpoena writ was’ left at his residence in Charleston.
    Several of the defendants answered ; and, on the 10th December, 1838, the bill was taken pro confesso, for want of an answer, against others, including Roger. On the 14th January, the case was referred to the Commissioner, to hear testimony and report, and on the 28th, it was ordered, inter alia, “that the Said Thomas Roger do forthwith pay to the Southern Steam Packet Company the sum of $100, the amount of his subscription to the said Company, with interest from the 17th August, 1838, and costs of suit.”
    From this the defendant appealed; but, in the mean time, made an application to his Honor Chancellor Harper, at Chambers, tp set aside the decretal order, as well as the order to take the bill pro confesso ; — on the following grounds :
    1. That it appears, by the "return of the writ of subpoena, that it was not served on the said defendant, otherwise than by leaving a copy at,his residence; and it does not appear, that at the time of such service, he was within the State; the fact being that he was, at the time, absent from the State, and that he never saw the copy left at his residence, until he was notified of the foregoing decretal order by the complainant’s solicitors, on the 12th February, 1839. He, therefore, submits, that the service of the subpoena was void, under the second rule of court, and that he was not a party in court, against whom a decree could be made.
    
      2. That the said decree was made without giving day to •this defendant to shew cause against the same, as required by the twenty-third rule of court
    3. That the said decree was made without adducing any proofs, and without giving the defendant any opportunity of being heard upon the merits disclosed by the bill and proofs, as required by the thirty-fifth rule of court.
    4. That after the cause had been referred to the commissioner, to take testimony, and report on the matters in dispute, a decree, before report made, was wholly irregular.
    5. That upon the face of the bill the complainants are not entitled to a decree.
    The defendant also submitted an affidavit “that he left Charleston, for New York, on the seventh day of August last, and did not return until the sixteenth day of October after-wards ; and that during the whole of the time intervening between those periods, he was constantly absent from and without the limits of this State. And he further swears, that he never saw the subpoena left for him, in this cause, until after he had received notice from the complainant’s solicitors, that a decree had been made against him, which notice was delivered to him on the 12th inst. He admits, that while at t]ie North, he was informed by his agent, Mr. Mottet, that scsme legal paper' was left for him, bpt it was not forwarded to ibis deponent, nor was his attention called to it, until notified of the decree, as above stated. This deponent further swears, that he has, as he - believes, a just and valid defence to the complainant’s demands, and asks nothing more than an opportunity to make his defence: .that he is willing to plead, answer, or demur, to the bill, within a reasonable time, and if he should be advised to file an answer, then to join in the prder of reference to the commissioner, made in regard to the other defendants.”
    An affidavit was submitted, in reply, by lb. Yeadon, Junr., ..“that some time -in July last, he wrote, as one of the firm of Yeadon & Macbeth, acting as solicitors of the Southern Steam Backet Company, the usual lawyer’s letter to Mr. .Thomas J. Roger,, calling an him to pay his subscription to the Southern Steam Packet Company, or to refer the said firm to his solicitor, for an appearance to a suit in equity for the same, and personally delivered the letter to Mr. Roger : that not hearing from Mr. Roger, on the 17th August Mr. Macbeth issued the subpoena, which it appears, by the sheriff’s return, was served, by leaving a copy at the defendant’s residence; that no answer having been put in by Mr. Roger; near the close of the last term of the Equity Court for Charleston, this deponent, on reading the bill, which had b,een taken pro confesso against Mr. Roger and others, and all the answers of the parties who had answered, obtained a decree against Mr. Roger, and has ¡since lodged an execution, to bind his property, with the sheriff of Charleston district: that the order of reference obtained by deponent, was taken by consent of the solicitors of the parties who had answered in legal time, 'or after that period, by consent of deponent; and Was, as it imports on its face, to settle the matters in' dispute between the company and such of the defendants as had answered, and had no reference whatever to Mr. Roger and Mr. Boyce; the only two who had failed to answer; that deponent wrote Mr. Roger a letter, informing him of the decree, and Mr. Roger waited on him, and alledged that he had never seen the writ; (which he said had been left during his temporary . absence from the city,) until after this deponent’s letter; that his clerk, on its being left, had taken it to Mr. Bailey, who said there was abundant time to attend to it after Mr. Roger’s return, and the clerk brought it back ; but that his clerk had neglected to give it to him after his return, and that was the reason why it had not been attended to ; and this deponent, as solicitor for the said company, objects to the opening of the said decree, and especially as Mr; Roger now further ad--mits, on his affidavit, that he received notice of the suit, while at the North, from his clerk.”
    His Honor, the Chancellor,, pronounced the following decree, Overruling the defendant’s motion;
    This is a motion to vacate and set aside a decree, which had been obtained against the defendant, Thomás J; Roger, on á bill ordered to be takeií pro confesso against him.
    A number of persons had subscribed to form á Southern Steam Packet Company, and to take the number of shares set down opposite to their names, at $500 each. The defendant had taken two shares, amounting tó one thousand dollars. The subscribers, or some of them, on petition to the Legisla-lature, were incorporated under the title by which they have sued. Some of the defendants who' havé answered, say as a defence, that they did not join in the application to the Legislature, and could not be made members óf a corporation, without their consent.
    
      The first ground of the motion is founded on the 2d rule of court, which is, that “all subpoenas ad respondendum shall be served personally, or where the defendant cannot be found, but is imtltin the State, by leaving a true copy of the writ at the dwelling house, or most notorious place of residence, or habitation, of the person to whom directed/’ The defendant swears, that the copy of the subpoena was left at his house during his temporary absence in New York, but admits that he was informed by a letter from his clerk, that some legal paper had been left for him. This seems to be the very case contemplated by the rule, in which the service shall be by leaving a copy. In giving construction to the rule, I should be inclined to follow the decision of the Courts of Law, giving construction to the Act of 1720, P. L. 109: which provides for serving process by leaving a copy at the residence, when the defendant absconds, or is absent; provided that nothing in the Act contained, “shall extend to any person or persons gone off from this settlement, and not being actually resident in the same, at the time when the copy of such writ shall be left at the house of such person, as aforesaid.”
    In the case of Lark vs. Chappel, (1 M’C. 566) the motion was to set aside the service of process; the defendant making oath, that he was without the State at the time the copy was left at his residence. The court refused the motion, on the ground that he did not deny having received the copy writ, or say that he had been surprised, or was in danger of suffering any injury by it. This was followed by the case of Frean ads. Cruikshanks, (3 M’C. 84.) In this case, the defendant swears that he did not see the copy of the subpoena, until after he was informed of the decree; and that he believes he has a good defence. He admits, however, that he was informed that some legal paper had been left for him, which was enough to put him on enquiry. It appears, from the affidavit of Mr. Yeadon, the complainant’s solicitor, that he wrote, and personally delivered to the defendant, before his departure for New York, the usual lawyer’s letter, requiring' him to pay his subscription to the Southern Steam Packet Company, or to refer him to a solicitor for an appearance to a suit in Equity. He stated to Mr. Yeadon, that when the copy was left, his clerk carried it to Mr. Bailey,' who said there would be time to attend to it after defendant’s return, and the clerk carried it back. Defendant did in fact return to Charleston on the 16th of October, and the decree was made on the 28th of January, more than three months after-wards. It is possible, that the defendant may have forgotten Mr. Peadon’s letter, and the information received from his clerk, while in New York; but it is just as easy:to believe, that he would have forgotten the circumstance of a copy being left. I cannot say that he has suffered any injury, from its having been left in his absence. To give the rule the construction contended for, would make it subservient to purposes of grossest laches, if not of actual bad faith.
    The second ground of the motion is, that the decree was made without giving any day to the defendant to shew cause' against it The 23d rule of court directs, that “if the defendant shall not appear and defend the suit, the bill and answer shall be read ; and if the court, upon hearing, shall find cause to decree for the plaintiff, yet a day shall be given for the defendant to shew cause against the same.” This seems, evidently, to relate to a case where the defendant has answered, and may be supposed to have denied the charges of the bill, or to have stated some defence against them; not, as in the present instance, where he has admitted them by his default
    The third ground is, that the decree was made in violation of the 35th rule of court, directing that, in making a final decree,' when a bill has been taken pro confesso, the court shall require such proofs as will satisfy it of the justice of the co'rrfplain ant’s demand. This, I suppose, must be matter for the discretion of the court. The English rule is, that when a bill is taken pro confessó, the plaintiff draws his own decree: or, as it is said, takes such a decree as he can abide ■by. The object of our rule must have been, to put it in the power of the court to guard against possible injustice to a defendant. The proof which' was provided in the present case, was the agreement signed by the defendant. That was the material part. It was to be inferred, that the members generally of the Company, had joined in the petition for incorporation. If the defendant could defend himself by shewing that he did not, it could scarcely be said, that •injustice was done him, by compelling him to perform an agreement made with individuals, though these individuals' had been transformed into a corporation. The Act of incorporation is not before me; but I suppose it, prima facie, includes him, as incorporating those persons a Steam Packet Company.
    There is nothing in thé fourth ground. The motion is overruled.
    From this decree the defendants appealed, oh the grounds Set forth, and also on the following additional grounds:
    1. That the defendant-was not made a party to the suit by any mode prescribed of recognized by law; and. is therefore entitled, as a matter of strict right, to v,acate all the proceedings against íiim.
    2. That in point of fact, the defendant had no notice that any suit was actually instituted against him, until he was called upon to pay the decree; and he has not, therefore, had any opportunity of contesting it at any stage of the proceedings.
    
      8. That the decree operates as a complete surprise upon the defendant, who has been condemned without any oppor* tunity of making his. defence; although, as he is advised, he lias a full and complete defence to the complainant’s demands,
    4. That the decree is in other respects contrary to the rules of law, and the principles and practice of Courts of Equity.
   Curia, per

Harper, Ch.

The Act of Assembly of 1784, .establishing a Court of Chancery, (P. L. 338,) provides that, “If in any suit in the said Court, a defendant, against whom .a process shall issue, shall cause an appearance to be entered thereupon, as it ought to have been if such procees had been duly served, and affidavit shall be made, to the satisfaction of the court, that such defendant is without the limits of this ¡State, or that, on enquiry at his or her usual place of abode, he or she could not be found to be served with such process,” .the court may direct advertisement to be made, and decree .upon default of appearance; provided that if, within a time limited, the party shall petition for the purpose and pay costs, he may he admitted to make his defence. It is contended .that .the .second rule of court referred to in the circuit decree., is repugnant tp this Act. But we must suppose the court to have given construction to the Act in adopting the rule, a construction which has been acted upon ever since, by which the rights of numerous parties have been fixed, and on which they may still depend, and from which we are not at liberty to depart, whatever might be our opinion of its correctness. The Act prescribes no method of service, though certainly the only method of service previously known, was that of personal service. The rule probably regarded the leaving of a copjr of the subpoena at the residence, when the party is within the State, as equivalent to personal service. And sp indeed it is, if, as is to be presumed, the defendant returns to his house in due time and actually receives the subpoena. If, however, the defendant should by any accident be prevented from returning- till decree passed, or if the copy. should be accidentally-taken away, so as not to be received by him, there is no doubt but that it would be within the discretion of the court to allow him to appear and defend the suit. The court would not make its own rule the instrument of injustice. And the court might impose terms, if it should appear that the defendant’s failing to receive the copy was occasioned by his own neglect or otherwise. But there may be cases in which, though the defendant should not be actually within the Stale, at the time of Service, he would seem to come within the reason and spirit of the rule and the analogy of the cases at law. Suppose the defendant, generally residing in the State, to have accidentally gone on the particular day of service beyond the limits of the State, as is put in the case of Lark vs. Chappell, and to return to his house the next day and actually to receive the copy of the subpoena. Here he would have all the benefit of a personal service, and it would be trifling with'the law to say that he might lie by, permit the other party to obtain his decree, and then at any distance of time, set aside the proceedings as not having been a party to the suit. And if we suppose him thus to have received the subpoena, it would hardly avail him to say he had afterwards forgotten it, any more than in the case of personal service. And so in this case, if the defendant had actually received the subpoena on his return from New York, in ample time to make his defence. He did not actually receive it, but according to the view taken in the circuit court, he was in substance and effect informed of it. If he after-wards suffered the matter to escape his memory he was guilty pf neglect; perhaps not so gross as if he had been personally served or actually received the subpoena. The court does not perceive sufficient grou.nds for setting aside the proceedings altogether, nor indeed does the defendant ask for it. As there was some irregularity in the manner of service, as well as neglect on his part, they suppose it to be within their ,discretion to allow him' to appear and defend, but think this must be upon payment of costs.

Bailey, for the motion. Yeadon, contra.

It is therefore ordered that, upon the payment of costs, the decree of the Circuit Court, entered on the 28th day of January, 1839, directing the payment of $1000 by the defendant, Thomas J. Roger, be set aside, and the said defendant be allowed to plead, answer, or demur.

Johnson, Johnston and Dunici'n, Ch., concurred.  