1840. COWAN บ. that the defendant had no knowledge or notice of the proceedings. It is averred, in a very technical and artificial manner, that they were not notified to him, "according to the course and practice of the court." That BRAIDWOOD. may mean that he had no such notice, as he ought in strictness to have had; but it is very far from alleging that he had not notice of the proceedings. Then the plea goes on to state that he did not know of the proceedings so that he might, "by himself, his proctor, attorney, or other agent by him appointed and instructed in that behalf, appear or plead, or in any way defend himself in the said action,"—still leaving it open that he might have had notice, so as to enable him to apply to the court. It seems to me, that this plea, which ought to have been good in omnibus, is deficient in these important particulars, and consequently, it is unnecessary to consider the replication, as our judgment must be for the plaintiff, upon the insufficiency of the plea. BOSANQUET J. I also think that this plea is insufficient. The declaration is framed in the usual way. It is not necessary to introduce into it any circumstances to shew that the decree on which the action is founded, is available in this country. The plea states that the decree is contrary to natural justice, and, therefore, inoperative and void. This is not traversable, being only a conclusion drawn from the matters of fact previously alleged in the plea. (a) Then, what are the grounds set forth to lead us to this conclusion? They are, that the defendant at the time of the commencement of the suit in which the decree was pronounced, or during its progress, was not in Scotland. The plea does not allege that the defendant was not born or domiciled in Scotland, or that he had not property there; nor does it (a) Vide Lucas v. Nockells, 10 Bingh. 159.; 3 Mo. & Scott, 627.; 7 Bligh, N. S. 140.; 1840. COWAN V. negative any of those circumstances which were adverted to in Douglas v. Forrest, as being necessary to give validity to the decree. Neither does it state that he BRAIDWOOD. had no notice of the proceedings. The words used seem rather to lead to the inference, that he had notice, but not in the regular way. The plea goes on to allege, that he did not know of the proceedings, so that he might appear and defend himself in person, or by attorney or agent. But this is a very qualified allegation. If the defendant meant to deny that he knew of the proceedings, he should have averred that fact in a different manner. It therefore seems to me, that the plea is deficient, and that the defendant is not warranted in the conclusion which he draws, that the decree is contrary to natural justice. COLTMAN J. Unless the previous statements in the plea shew that such is the fact, the allegation introduced by way of conclusion, that the decree is contrary to natural justice is insufficient, and, in reality, amounts to nothing. It is consistent with this plea, that the defendant was domiciled in Scotland, and that he had sufficient notice of the proceedings so as to satisfy the justice of the case, though they may not have been notified to him according to the strict rule of the court. It may be true, that he had no knowledge of the proceedings (although that is stated in a very qualified manner), and yet they may, if he was domiciled in Scotland, be perfectly consonant to natural justice. It appears to me, that the party is bound to make out his defence in omnibus, and that this plea is an insufficient answer to a declaration which is primâ facie good. MAULE J. The declaration, being in the ordinary form, is sufficient, and the plea ought to have disclosed something in answer to it. The answer suggested by 1840. COWAN บ. this plea is, that the decree mentioned in the declaraation is void; but, in order to establish that, the defendant ought to have alleged circumstances shewing either that the decree was not binding in Scotland; or that he BRAIDWOOD. ought not to be bound by it here, such decree being contrary to natural justice; as in Buchanan v. Rucker. The defendant has not attempted to set up the former proposition, and has failed in establishing the latter. The courts at Westminster, in sustaining decrees of foreign courts against absent persons, have decided, that, in their judgment, a decree may not be contrary to natural justice, although made against a party who is absent, for absence alone is not sufficient to invalidate the proceedings. Here, there is a declaration in assumpsit, founded on a good consideration, namely, a decree of the Scotch court; and the plea, in order to be an answer to it, should shew that under no circumstances can the decree be good. I am of opinion, with the rest of the court, that this plea is bad. In coming to that conclusion, we do not trench upon the law laid down in Buchanan v. Rucker; we merely say, in accordance with the ordinary rule of law, that, where the declaration is good upon the face of it, the plea should disclose something to shew that it is otherwise. Judgment for the plaintiffs. (a) Ogle applied to amend, but the court refused to give him leave to do so, nothing being suggested to induce a belief that the defendant had any merits. (a) Si lex actui formam dat, inspiciendus est locus actûs, non domicilii, non rei sitæ ; id est, si de solemnitatibus quæratur, si de loco, de tempore, de modo actûs, ejus loci habenda est ratio ubi actus sive negotium celebratur. Hertius, de col lisione legum, s. 10. pl. 126.; 1840. Nov. 25. A communi- ON cation to or by the counsel of A., from or to the attorney of B., respecting the proceedings in a cause between A. out of court, is not binding upon A. Where, therefore, pending a rule nisi, the RICHARDSON V. PETO. N the first day of this term, Theobald obtained a rule calling upon the plaintiff to shew cause on the 5th of November, why judgment should not be entered for the defendant as in case of a nonsuit. No cause having been shewn, the rule was made absolute on the 12th, and on the 18th the defendant signed judgment. On the following day, Shee Serjt. moved for and oband B., which tained a rule calling upon the defendant to shew cause takes place why the rule absolute for judgment as in case of a nonsuit, should not be discharged, and the judgment signed thereon set aside, on the ground that the rule had been made absolute at an earlier period than, according to good faith and the understanding of the parties, it ought to have been done. The affidavit in support of this motion stated, that after service of the rule nisi for judgment as in case of a nonsuit, the attorney for the plaintiff, meeting the defendant's counsel in the street, versation, out informed him that the plaintiff was unwell, and unable of court, with to give the necessary instructions for shewing cause against the rule, that he requested the defendant's counsel to postpone bringing on his motion to make the rule, that the rule absolute, which the latter consented to do, upon being informed that counsel would be instructed to opthe rule, pose attorney served with the rule inferred, from a con the counsel who had moved the latter would forbear to move to make it absolute for that he said that there was no hurry, a certain time, but advised the attorney to be as quick as he could. and the rule was made absolute by that counsel within the time mentioned, the Wilde S. G. now shewed cause. It is contrary to the practice of the profession that the attorney for one of the parties to a cause should seek to obtain from the counsel court refused to reopen the rule. engaged for the adverse party any promise or represent ation as to the steps to be taken in the cause. The in 1840. V. troduction into affidavits of conversations with counsel, is RICHARDSON calculated to destroy that independent position in which counsel ought to stand before the court. Theobald, on the same side, stated that the attorney for the defendant had represented to him that he had been at the chambers of the counsel whom he meant to instruct to shew cause against the rule, but had not been able to find him; and that he thereupon desired the attorney to lose no time; but that the remainder of what was alleged to have been said by the defendant's attorney had not reached his ears. Shee Serjt, in support of the rule. In a case where so much misconception seems to have arisen in the mind of the plaintiff's attorney, it is not too much to ask the court that the plaintiff should be let in, upon such terms as, under all the circumstances, the court may think reasonable, to shew cause against the rule for judgment as in cases of a nonsuit. TINDAL C. J. I think that this rule ought to be discharged the grounds upon which this application is made are such as would place counsel in a false position, and would be very injurious to the practice of the bar. The attorney, admitted to prosecute or defend, represents his client throughout the cause (a); but a (a) The attorney being admitted ad lucrandum vel perdendum in the particular cause, it was formerly not unusual for the court to depute four knights to go to the party for the purpose of inquiring of him, whether he had really attorned, that is, substituted, the person who professed to be his attorney. PETO. |