Smith v. Parke

New York Court of Chancery

Smith v. Parke

2 Paige Ch. 298, 1830 N.Y. LEXIS 427, 1830 N.Y. Misc. LEXIS 63

DecidedAugust 4, 1830

StatusPublished

This text of 2 Paige Ch. 298 (Smith v. Parke) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Parke, 2 Paige Ch. 298, 1830 N.Y. LEXIS 427, 1830 N.Y. Misc. LEXIS 63 (N.Y. 1830).

Pincite

Opinion

The Chancellor.

The proper manner of serving the subpoena is by delivering-' it to the defendant personally, if he can be found; or, in case of his absence, by leaving it with his wife, or some member of his family of suitable age and discretion, at his place of abode. If the service cannot be made in either of these modes, it may be made by leaving the subpoena with the. defendant’s servant or clerk at his place of business, which in such a case is equivalent to a service at his dwelling house.' (1 Price’s R. 92. 3 Price’s " R. 176.) The 21st rule of this court does not exclude any other legal mode of service which will be as likely to bring home to the defendant knowledge of the subpoena. The statute having provided a mode of notifying defendants who are absent from the state, or concealed therein, the English practice of allowing a substituted service, by an application to the court, can only be adopted in very special cases. But service on the clerk or servant of a party at his usual place [299]*299of business was never considered a substituted service ; and no special order of the court is necessary to validate such a service.

Under the circumstances disclosed in the affidavit, the subpcena was duly" served, and the attachment was regularly issued.

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The Chancellor.

The proper manner of serving the subpoena is by delivering-' it to the defendant personally, if he can be found; or, in case of his absence, by leaving it with his wife, or some member of his family of suitable age and discretion, at his place of abode. If the service cannot be made in either of these modes, it may be made by leaving the subpoena with the. defendant’s servant or clerk at his place of business, which in such a case is equivalent to a service at his dwelling house.' (1 Price’s R. 92. 3 Price’s " R. 176.) The 21st rule of this court does not exclude any other legal mode of service which will be as likely to bring home to the defendant knowledge of the subpoena. The statute having provided a mode of notifying defendants who are absent from the state, or concealed therein, the English practice of allowing a substituted service, by an application to the court, can only be adopted in very special cases. But service on the clerk or servant of a party at his usual place [299]*299of business was never considered a substituted service ; and no special order of the court is necessary to validate such a service.

Under the circumstances disclosed in the affidavit, the subpcena was duly" served, and the attachment was regularly issued.

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Bluebook (online)

2 Paige Ch. 298, 1830 N.Y. LEXIS 427, 1830 N.Y. Misc. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-parke-nychanct-1830.