People ex rel. Wyckoff v. Boyd

The first question is, whether the notice for the defendant Boyd to answer was ever served. The complainant’s solicitor not only produces the deposition of his clerk to show that service was effected, but he gives a copy of the very notice which was served ; while the defendant as far as he can, denies such service ; and the affidavit of his solicitor and that of his clerk would go to confirm the denial. But it is to be observed here that, the stating a matter affirmatively is not to be put down by a negative deposition in this way ; although it may very well be that there is no intention of false swearing.

Then, as to serving the notice without a copy of the bill. *519I have no hesitation in saying that, where a solicitor appears at different periods for different defendants, a copy of the bill should, in each case, be served. This practice ought to be adopted, for the defendants may have different defences to make, and they may live far apart and their solicitor may wish to furnish each with a copy at the same time, in order to receive their respective instructions for drawing the answers. In this case, it ought to have been done—it would have confirmed the service which is now in dispute. The complainants solicitor should not have enquired whether the defendant’s solicitor required another copy of the bill: for the latter could have notified the former if he did not want it.

Still, I hold that a solicitor may waive a right in a matter of practice by parol. It is so in the Supreme Court, and I consider it as waived in the present case. On the fourth of December last, the solicitor for the defendant (and after an attachment had been issued for not answering) signed a stipulation that the answer .should be put in within ten days. Under the circumstances, it appears to me he has waived all objection to the regularity of the proceedings to compel an answer. It is very remarkable, that these delays should have taken place, when the answer was ready and sworn to and in the hands of this defendant’s solicitor to be filed as far back as the eighth day of October last.

The only question is as to costs. All this proceeding might have been avoided by a filing of the answer. The defendant, John Boyd, must pay the costs.