« ForrigeFortsett »
a is, that the decree mentioned in the declara- 1840.
void ; but, in order to establish that, the defendht to have alleged circumstances shewing either : decree was not binding in Scotland; or that he BRAIDWOOD. not to be bound by it here, such decree being y to natural justice; as in Buchanan v. Rucker. fendant has not attempted to set up the former tion, and has failed in establishing the latter. purts at Westminster, in sustaining decrees of courts against absent persons, have decided, that, judgment, a decree may not be contrary to natural although made against a party who is absent, for
alone is not sufficient to invalidate the proceedHere, there is a declaration in assumpsit, founded pod consideration, namely, a decree of the Scotch and the plea, in order to be an answer to it, should hat under no circumstances can the decree be
I am of opinion, with the rest of the court, that za is bad. In coming to that conclusion, we do ench upon the law laid down in Buchanan v. '; we merely say, in accordance with the ordinary
law, that, where the declaration is good upon the f it, the plea should disclose something to shew is otherwise.
Judgment for the plaintiffs. (a)
e applied to amend, but the court refused to give ave to do so, nothing being suggested to induce :f that the defendant had any merits.
Si lex actui formam dat, indus est locus actûs, micilii, non rei sitæ ; id de solemnitatibus quærade loco, de tempore, de ictûs, ejus loci habenda jo ubi actus sive nego·lebratur. Hertius, de col
lisione legum, s. 10. pl. 126.; and see ibid. 148, S. 59.; Euvres de Cochin, tom. i. 72., tom. iii. 26., tom. v. 697. ; Euvres de Daguesseau, tom. iv. 637. 722. ; 2 Mann, & Ryl. 581. n., 589. n.
Richardson v. Pero.
A communi. O n the first day of this term, Theobald obtained a cation to or by the counsel
rule calling upon the plaintiff to shew cause on the of A., from 5th of November, why judgment should not be entered or to the at- for the defendant as in case of a nonsuit. No cause torney of B., respecting the having been shewn, the rule was made absolute on the proceedings 12th, and on the 18th the defendant signed judgment. in a cause between A.
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 nonout of court, is not binding suit, should not be discharged, and the judgment signed upon A. thereon set aside, on the ground that the rule had been therefore,
s made absolute at an earlier period than, according to pending a good faith and the understanding of the parties, it ought rule nisi, the to have been done. The affidavit in support of this attorney served with motion stated, that after service of the rule nisi for the rule judgment as in case of a nonsuit, the attorney for the from a con
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 the counsel who had against the rule, – that he requested the defendant's moved the counsel to postpone bringing on his motion to make the rule, that the rule obsolute which th latter would
rule absolute, which the latter consented to do, upon forbear to being informed that counsel would be instructed to op
ove to make pose the rule, – that he said that there was no hurry, it absolute for a certain time, but advised the attorney to be as quick as he could. and the rule was made
Wilde S. G. now shewed cause. It is contrary to the absolute by that counsel practice of the profession that the attorney for one of the
the parties to a cause should seek to obtain from the counsel time mentioned, the court refused to reopen the rule.
d for the adverse party any promise or represent- 1840. s to the steps to be taken in the cause. The inion into affidavits of conversations with counsel, is RICHARDSON ted to destroy that independent position in which Pero. I ought to stand before the court.
obald, on the same side, stated that the attorney
defendant had represented to him that he had t the chambers of the counsel whom he meant to t to shew cause against the rule, but had not been ) find him; and that he thereupon desired the :y to lose no time; but that the remainder of was alleged to have been said by the defendant's ey had not reached his ears.
: Serjt, in support of the rule. In a case where ch misconception seems to have arisen in the mind plaintiff's attorney, it is not too much to ask the that the plaintiff should be let in, upon such terms der all the circumstances, the court may think iable, to shew cause against the rule for judgment cases of a nonsuit.
NDAL C. J. I think that this rule ought to be dised: the grounds upon which this application is are such as would place counsel in a false posiind would be very injurious to the practice of the The attorney, admitted to prosecute or defend, reats his client throughout the cause (a); but a
The attorney being adad lucrandum vel pern in the particular cause, formerly not unusual for urt to depute four knights o the party for the puri inquiring of him, whe, had really attorned, that stituted, the person who
professed to be bis attorney. This was afterwards rendered unnecessary by requiring the attorney to enter his warrant on the record. The practice of entering warrants of attorney on the record has lately been discontinued, without, however, returning to the antient practice.
1840. counsel represents his client only when speaking for him
in court. It would confuse the relative position of the RICHARDSON two branches of the profession, if we were to hold
that a communication made to counsel by the adverse attorney or party, or a statement made by him out of court, was to have the same effect as a communication made to or proceeding from the attorney. For the sake of example, and for the purpose of preventing any improper precedent, I am of opinion that this rule should be discharged; but I think that, under the circumstances, it should be discharged generally, without any thing being said about costs. (a)
COLTMAN, ERSKINE, and MAULE JJ. concurred.
(a) Costs not having been mentioned in the rule nisi, the effect of the silence of the court
as to costs, was, that the rule would be discharged without costs.
LEGGE v. Boyd.
The court THIS was an action upon the case brought against the will not allow - defendant, who was the collector of customs for the a defendant to put special port of London, for refusing to sign a bill of entry of pleas on the certain tobacco, in order to enable the plaintiff to obtain dition to the
ad- possession of it on payment of the lower duty of 5l. per
P statutable cent. upon the value, pursuant to the 3 & 4 W. 4. c. 52. plea of the s. 50. and 3 & 4 W. 4. C. 56. sched. “ Inwards.” general issue.
The action arose out of a question between the plaintiff and the defendant as to the amount of duty payable on the tobacco, which had been originally imported into London, and thence reshipped for Londonderry. The vessel containing the tobacco was wrecked on the coast
evonshire, and the tobacco, being taken out by
the part of the defendant an application had been
ilde, Solicitor-General, on a former day in this , had obtained a rule calling on the plaintiff to shew e why the. order should not be amended by exping the words imposing the above condition on defendant.
hannell Serjt. now shewed cause. By the rule of T. 4 Will. 4. (c), “ pleas, avowries, and cognizances
(c) “ General Rules and Regulations,” rule 5., 10 Bingh.