Webb v Salmon
| Jurisdiction | England & Wales |
| Judgment Date | 12 February 1844 |
| Date | 12 February 1844 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 376
HIGH COURT OF CHANCERY
[251] webbi*. salmon. Jan. 31, Feb. 12, 1844. In 1834 S. employed B. as his agent and solicitor in the matter in question, and B., in that capacity, corresponded with W. thereon. In 1843 S., who then resided abroad, being informed that the representative of W. was about to file a bill against him on the same matter, directed that he should be referred to B., in whose hands the matter had been. B. stated that he had no authority to appear for S., and was not professionally concerned for him. Held, that service on B., of the subpcena to appear and answer the bill, could not be substituted for service on S. The bill was filed by the heir at law of a mortgagor against a mortgagee, who, under a power of sale, had sold the mortgaged premises, praying an account of the receipts of the Defendant as mortgagee in possession before the sale, an account of the proceeds of the sale, and payment of the surplus to the Plaintiff. Mr. Lewis moved ex parte that service of the suhpwna to appear and answer upon Messrs. Bay ley might be good service on Salmon, the Defendant. The motion was supported by the affidavit of the Plaintiff's solicitor, which stated 3 HAKE, 252. WEBB V. SALMON 377 that the Defendant, some time before the bill was filed, had left this country, and that he still continued abroad, residing, as the deponent believed, at Rome; that the deponent had called on Messrs. Hillier & Lewis, solicitors (who, as the deponent had been informed and believed, acted for many years as the town agents and solicitors of the Defendant when he practised as a solicitor at Devizes), and left with them a copy of the bill, and inquired whether they would enter an appearance for the Defendant, Salmon; that Hillier & Lewis declined to do this without instructions from Salmon, and promised to communicate with him on the subject; that, on the 18th of November 1843, Hillier & Lewis returned the draft bill to the deponent, informing the deponent that they had written to the Defendant in Italy, acquainting him with the nature and object of the bill, and requesting to know whether he would wish them to appear for him, and stated that they had received, in reply, a letter containing a paragraph to the effect that " this matter (meari-[252]-ing the matter of the suit) had been already in the hands of Messrs. Bayley, solicitors, of Devizes, and the Defendant desired that Messrs. .Hillier & Lewis would refer the deponent to Messrs. Bayley on the subject." That, in the year 1834, Messrs'. Bayley had been employed, as the solicitors of the Defendant, in communications with the Plaintiffs father (then the heir at law of the mortgagor) with reference to his claim on the Defendant in respect of the same matter ; that the Defendant had on that occasion distinctly referred the heir at law to Messrs Bayley, as his solicitors, in any steps which might be taken, and Messrs. Bayley accordingly then corresponded with the heir at law in the character of solicitors for the Defendant; that, since the communication from Hillier & Lewis in November 1843, frequent applications had been made to Messrs. Bayley to enter an appearance for the Defendant, and that they had refused so to do. He cited, in support of the application, English v. Hendrick (6 Madd. 205), Kinder v. Forbes (2 Beav. 503). His Honor said there was not a sufficient statement of th'e recent communications with Messrs. Bayley to justify the substituted service upon them, and he refused the motion. Feb. 12. The motion was renewed upon further affidavits, to the effect that, on the 18th of November 1843, the deponent, the Plaintiffs solicitor, wrote to Messrs. [253] Bayley, reminding them that, as the Defendant's solicitors, they had some years before corresponded with the solicitor of the heir at law on the matter in question; stating that a bill had been filed against the Defendant; and also stating the subsequent communications on the subject with the Defendant through Messrs. Hillier & Lewis, and adding " I request the favour of you to instruct your agent to enter an appearance at your early convenience." That Messrs. Bayley replied by a letter, dated the 21st of November 1843, stating their intention to consult with Messrs. Tugwell & Meek, the firm from which the Defendant had recently retired, on the subject, and promising to write to the Plaintiff's solicitor after such consultation; that, after some letters between the deponent and Messrs. Bayley, pressing for and promising an answer, Messrs. Tugwell & Meek wrote to the deponent a letter, dated the 8th of December 1843, as follows :-"Messrs. Bayley have been with us to-day on the subject of this claim, and they have requested us to beg of you to be good enough to say what it is to which your client lays claim, how or through whom he claims, and how he proposes to establish his claim. A candid reply to these inquiries may probably save a good deal of trouble and expense, and as they are questions which, at some stage of the proceedings, you will be called upon to answer, we do not anticipate that you can have any hesitation in now replying to them. It is not the wish of Messrs. Bayley or ourselves to put your client to unnecessary trouble or expense, and if he can shew to our satisfaction that he is in a position to establish the claim which he sets up, he will probably, by taking this course, arrive much more speedily at the result he aims at than he would by a hostile course." That the deponent, on the llth of December following, in answer to the last letter, wrote [254] to Messrs. Tugwell & Meek as follows:-"I do not consider that I have any authority from Mr. Salmon to correspond with you in reply to the inquiries which your letter contains; I shall, however, have pleasure in corresponding with you on the matter when you have appeared in the suit. I cannot but express my surprise that, after the letter I have addressed to Messrs. Bayley, they have not yet candidly declared their intention, 378...
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