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MCKIM v. ODOM. 429
who goes abroad, not to reside, but for the purpose of adjusting
his affaire; or a sailor, who is in the habit of coming backwards
and forwards, in his vocation, cannot be deemed an absconding or
a non-resident defendant, (k)
It is therefore perfectly manifest, that none of the acts of Assess
bly relative to absconding and non-resident defendants, apply to
the case of this defendant Odom. The legislature intended, by
those acts, to introduce a remedy in certain cases for "which it had
been held to be, in all respects, beyond the power of the court to
provide. The object was to substitute a public warning, through
the newspapers, for a personal summons, in cases where a sum-
mons could not be served at all, or without great difficulty. For,
although the service of a subpoena abroad is deemed sufficient; yet
it cannot, in all cases, be effected; and, where it can, the proof of
such service is always attended with much delay and expense.
Those legislative enactments, in relation to non-residents, clearly
indicate, that the court, in the opinion of the Legislature, has no
power to dispense with the service of process on the defendant, in
the usual mode, whereby he is to be notified of, and called on to
answer any matters of fact which the plaintiff has set forth as the
foundation of a claim for relief against him. And this is recog-
nized as a well established general rule by all the authorities. (l)
This, however, like almost all other general rules, has some
exceptions or modifications. The court has substituted service,
in several cases, where the defendant may have notice of the pro-
ceedings, and where, in case he goes out of the way, there is a
person who he has named in court as his agent, and who the court
can look upon as such. But a person named agent for a different
purpose cannot be looked on in that light, (m) As in case of an
injunction to stay proceedings at law, the attorney at law is such
an agent, who the court can regard as one charged with the whole
defence of the matter in equity; and so too, where a defendant, who
lives abroad, refuses to answer, after having appeared as required
by the subpaena with which he has been served, the court will
order service on his solicitor to be deemed good service of a sub-
paena to answer an amended bill; because in all such cases there
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(k) White p. Greathead, 15 Ves. 2; Nelson v.. Ogle, 2 Taunt 258.—(I) 2 Mad.
Pr. Chan. 18S; 1 Harr. Pra. Chan. 206; Buckingham v. Peddicord, 2 Bland, 447;
Nolan 9. Nolan, 12 Cond. Chan. Rep. 47, 12L—(m) Smith v.. The Hibernian Mine
Company, 1 Scho. & Lefr. 288.
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