Sinclair v. Sandford , 7 Paige Ch. 432 ( 1839 )

The Chancellor.

The provision in the fourteenth rule is genera], that when the solicitors for the adverse parties do not reside in the same county and within forty miles of each other, the service of papers may be made on an agent. And there is nothing in the nature of this case to make it an exception to the rule that a service upon an agent is as good service as if made on the solicitor himself. The object of giving ten days, to deliver a copy of the bill, where the solicitors for the respective parties resided more than twenty miles from each other, was to give to the complainant’s solicitor sufficient time to copy and serve the bill, where he lived at a great distance from the solicitor of the adverse party or his agent; or where it might require more than twelve days to receive the notice of retainer served on his agent, and to copy and serve the bill. Where the residences of the respective solicitors are such as to authorize a service of the copy of the bill on an agent, the defendant’s solicitor therefore must wait until he has had time to hear from his agent, before he can give notice of a motion to dissolve the injunction, without incurring the risk of subjecting his client to costs if the bill has been duly served on the agent within the time required by the rule.

In this case the notice of the motion was undoubtedly given in good faith. But as the defendant’s solicitor, after he ascertained that the bill was duly served on the agent, insisted upon the correctness of his own practice, and required the payment of costs as a condition of abandoning his motion, and as he is found to be in the wrong in point of practice, he must pay the costs of opposing the motion; will L '•asp. will be inserted in the order denying the motio. irs.