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430 McKIM v. ODOM
is a person before the court charged with the care of the whole
in controversy; and one who the court can, with propriety,
regard as an agent having had committed to him the defence of
the whole subject in behalf of the non-resident defendant, (n)
. But, in this instance, a resident citizen defendant has evidently
done no more than to commit his interests, in a specified case, to
the management of his solicitor according to the defence expressed
in his answer to the original bill. In these respects his situation
is materially different from that of a contumacious non-resident
defendant. The agency constituted by such a defendant is, evi-
dently, that of a general charge; but the confidence reposed in the
solicitor, in this case, is special and particular. He has been fur-
nished with an answer or defence exactly fitted to a given case;
and therefore, now, that it has been varied by an amendment of
the bill, he cannot be presumed to be charged with a defence of
the modified or newly formed case; which his client, being a resi-
dent citizen, has as clear a right to be notified of, and to answer
unto for himself, as he had to consider and answer the original bill.
It has been suggested, that Odom's answer to the amended bill
must be merely formal, as he knows nothing of the new matters
therein stated. But it is impossible to anticipate how far its
aspect may be changed by the answer which Odom has a right to
make, and may give to this amended bill, (o) I am aware, that
the case may be delayed very much by Odom's remaining abroad ;
but he is a resident citizen; and, as such, has an undoubted right
to be notified of this amended bill by the service of process upon
him in the usual mode, to the end, that he may, if he thinks pro-
per, answer it for himself. And this, his unquestionable right, I
have no power to impair in any way whatever, (p)
Whereupon it is Ordered, that the said petition be and the same
is hereby dismissed with costs.
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|n) Gildenichi v. Charnock, 6 Ves. 171.—(o) Angerstein v. Clarke, 1 Ves., jun.,
250; Jopling v. Stuart, 4 Ves, 619.
(p) It has been since declared, that where a defendant, of full age, in any case,
shall, upon two successive subpaenas, be retained non est, it shall be lawful to order
publication of the substance of the bill or petition against such defendant as if a
non-resident of this state, and to proceed in the same manner and to every effect, as
if fee were not a resident of this state, and as if the case made in the bill or petition
were within any of the acts of Assembly made in respect of absent or non-resident
defendants; Provided, that each of said subpaenas be delivered to the sheriff for ser-
vice at least twenty days before the first day of the term to which it shall be return-
able, 1832, ch. 302, s. 2,—Buckingham v. Peddicord, 2 Bland, 447,
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