Rhodes v Innes
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1931 |
| Date | 28 January 1931 |
| Court | Court of Common Pleas |
English Reports Citation: 131 E.R. 127
COURT OF COMMON PLEAS
S. C. 5 Moo. & P. 153; 1 D. P. C. 215; 9 L. J. C. P. (O. S.) 116.
rhodes v. innes. Jan. 28, 1831. [S. C. 5 Moo. & P. 153; 1 D. P. C. 215; 9 L. J. C. P. (0. S.) 116.] Where the father eluded service of process, service on the son, who said his father was in the house and should receive the writ, Held equivalent to personal service of the father. A rule had been obtained in this case to set aside the appearance entered by the Plaintiff for the Defendant, the declaration, and all subsequent proceedings, on an affidavit by the Defendant that he had never been served with process. Wilde Serjt. shewed cause on an affidavit that the Defendant had long been eluding service, and that the writ, enveloped in a letter, was at length served at the Defendant's house on his son, who was told what the envelope contained. The son said his father was in the [330] house, and should receive the writ. Wilde contended this was equivalent to personal service. E. Lawes Serjt. contra. The Plaintiff is not allowed to enter an appearance for the Defendant under the statute 12 G. 1, e. 29, except upon affidavit made and filed of the personal service of the Defendant. Service on the son cannot be deemed a personal service on the father; it would not be sufficient to warrant an attachment, and is not sufficient under the statute. tindal C. J. This motion has been made on the 12 G. 1, c. 29, which enacts, " That if the defendant shall not appear at the return of the process, or within four days after such return, it shall be lawful to and for the plaintiff, upon affidavit being made and filed in the proper court of the personal service of such process, to enter a common appearance or file common bail for the defendant;" and the question is, whether there has been an affidavit of personal service of the writ, or what is equivalent. There is no magic in the word personal, and if a party by his conduct or agreement chooses to waive personal service, a service less strict may be sufficient. Has there not been virtually a personal service here? The clerk endeavours to see the Defendant, but an interview is eluded by a trick between the father and son. That strictly personal service is not always required, appears from the case of Smith v. Wintle (Barnes, 292), where the plaintiff put a copy of the writ through the crevice of the door, and seeing the defendant within...
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