Hollingsworth v. Duane

The question is. whether the rule in this case has been duly servéd on the defendant. If the party conceals himself, that may be a ground for our directing service at his place of abode, to be sufficient. But that must be under a new rule with a special direction. I am of opinion, that the service in this case is not sufficient The defendant is a third person, and no party to the cause. An application was made to bring him before the court for a contempt; and in order that he might defend himself, the court direct a rule on him to show cause against the motion. The party moving for the attachment, says, “It was left at his house, with his housekeeper.” Is this service on the party? If we proceed, how do we know that we are not proceeding against him without a summons? It is a dictate of natural justice, that a party should have notice. There may be, and, indeed, are cases in which presumptive evidence of notice may be sufficient. Some of these are by statute; some by rules of court; some by practice. But on motions for attachment, I have always understood the law to be. that proof must be made of delivery of the notice to the party, or of its coming to his knowledge. In Rex v. Edyvean, 3 Term R. 351. Lord Kenyon’s expression is, “That in general, personal notice is necessary before a party can be brought into contempt.” In Jones v. Griffiths, 4 Term R. 464, the court seem to make no distinction, in cases of contempt, between the manner of serving the process on which the contempt is grounded, or of the rule calling on the party to answer the contempt: and in reason there is no distinction; for it may be certainly presumed that a rule to show cause, or a notice, by being left at the last place of abode, came to the defendant; why may not leaving a rule of court, on which the contempt arises, in the same way furnish the same legal presumption of its coming to his knowledge? In all my practice, I have never known the court to proceed on an attachment, without proof of personal service of the notice, or rule to show cause; or proving that it actually came to the defendant’s knowledge. This is a safe and good rule; and conformable to justice and equity. I think the motion must be refused; and the prosecutor put to prove a personal service, unless dispensed with by the terms of the rule.

There seems some reason for the distinction made by the counsel for the motion. Certainly, where you move the court for an attachment, because a party has disobeyed or contemned its process, or order, you must prove that such process or order was personally served. But where that proof is first made, and the case is such, that instead of an attachment at once, the court will give the party a rule to show cause, before they award an attachment; whether that rule, which is in the nature of a summons or notice, requires a personal service, or may be presumed to come to the party’s knowledge by leaving it at his place of abode, is somewhat a different question. And yet, I cannot find that the distinction taken on this motion is any where recognized; but it seems rather to be the practice, and the idea to be collected from the books, that all notices on proceedings in attachments are to be personally served. This is a received notion in ordinary practice; and is, certainly, most conformable to the reason of the common law, which is ever opposed to an ex parte proceeding. Unless there is proof that the party did receive the notice, it would be proceeding against him unheard. There are cases, in which, by statute, or by received practice, presumptive service of rules or other process of the court, is deemed sufficient. But I am inclined to think that rules to show cause against an attachment, require personal service, or proof of the actual reception by the party. This is the most safe and satisfactory principle. If, indeed, it should appear that the party evades the service, or other circumstances render it proper, the court would direct the leaving it at his place of abode to be good service (see 2 Hawk. P. C. 230, note 3): and as in this case, pains have been taken to serve the rule personally, and the affidavits state that he secretes himself; we will make such an order if prayed for. But as the rule has not been served personally, the court cannot proceed further upon it.

Mr. Dallas then moved for a new rule upon Wayne to show cause on the first day of October sessions next; with an order that service at the party’s last place of abode, should be deemed sufficient: which was granted.