SUPREME COURT.

Auckland Chronicle and New Zealand Colonist, Volume 2, Issue 47, 27 June 1844, Page 3

SUPREME COURT.

Porter v. Shortland. This is a suit h> set aside an agreement marie between Plaintiff and Defendanl, and flawed 12th July, 1811 ; under which the Defendant became the Punnaser ol an A-Uo'-fnent of Land in ihe Town of Auckland, of which Allotment he appears to have continued in possesion "mil the present time Another suit growing out of the same agreement. was recently instituted by the Plaintiff .gainst the said Defendant. That was not, like the present, a Suit to cancel and set aside the agreement, bin simply to recover damages for an*alleged breach of that agreement. At or soon after Ihe time at which the Action for Da tinge was commenced, the Defendant was on the point of leaving the Colony. He accordingly rna le arrangements for the purpose of defending the action in his absence. He executed a power of Attorney to certain persons, under the authority whereof they defended the ; ction.and appeared, and pleaded, or at least tendered their plea. Nothing further is shewn as to the relation between these persons ai.d the Defendant. AfterWards the Plaintiff abandoned the Action, and instituted the present Suit. He now applies to the Court to compel those persons to receive service of the Writ of Summons in this new Suit, and to defend the same in the place and on behalf of the absent defendant- Now the authority which the Court is called upon to exercise, is clearly one which involves very serious consequences, and a risk (not inconsiderable) of actual injustice. For the questions raised in the one suit are widely different from those raised in the other. In the former Suit the validity of the agreement was assumed, and the only questions were, has this Agreement been or not by the Defendant ? and if yea, has the Plaintiff sustained damage thereby, and bow much damage? In the la'.ter suit, the one main question is, what is the inherent force and completeness of this AgreementJ? has not the defendant a right, even after holding possession under it for 30 long a time, to rescind it and treat it as a nullity ? Now, instructions which might, in the one suit, be amply sufficient to enable an agent 10 defend it, might be found insufficient in the other. The only authority cited in support of the present aiotion, is a shott and imperfect note of a case in which service upon a person transacting business asjanjagent under a Power of Attorney, is reported to ("I Dickens) have been allowed to be substituted for service upon the principal, by whom the power was given.

It does not appear what business was transacted. 'or in what way ; nor are any of the circumstances of the case disclosed. And in a much later case reported also by a far better authority, (1 Scho & Lef.) It appears to have been decided that the act of a person holding the Power of Attorney for s Defendant residing out of the Jurisdiction, (such person not having so far as appears acted aggressively,) does not justify a Court of Equity, in aU lowing a substitution of service of Process upon the person holding the Power* Also, where one of two Defendants resided out of the jurisdiction, ■and the other held a Power of Attorney from him* to receive the arrears (then doe) of an annuity which it was the object of the Plaintiff's suit to set aside, the substitution of service was refused. Rickford v. Redriff, (2 Merivale). But indeed the difference between the practice of the Courts of Chancery at home, and the Supreme Courts of this Colony, on "this very point of service of Process is such as to reader decisions of the former Court relating to that point scarcely applicable here. In this Court personal service is required by the general Rules, except in certain specified cases. But personal service beitg a ptivelege of the Defendant for his safety and benefit, may, like other legal privileges, be waived by him for whose beuefit it is intended. Is there any thing to show that it has been waived in this case 1

It is to be observed that the question raised by this motion is widely different from the question, whether service of Process of Agents under Power of Attorney may not be substituted for personal service upon their principal, in a case where those Agents have become Plaintiffs, in an action, and where the Defendants in that action brings a cross action, grounded upon and relating to the very same matter or transaction to which the first action related. No such question arises here. The present application to the Court is a movement of attack, not of defence.

In the former action, so far as the Court is ins formed, the Defendant appears to have done all that was required of him. So far as he was con* cerned, the cause would have gone in due course before a jury. After bis departure, tbe Plaintiff abandons the claim which the Defendant had met, and opens a new one.

On principle, I do not consider this a proceeding to be encouraged. As to the Authority, the present practice (at any rate) of Courts of Equity at home, (if applicable) would be opposed to it. It is negatived by the Roles this Court. Therefore, let the motion be dismissed with costs.