Now here it is sworn on the one side, and not denied on the other, that the two latter bills were not delivered till some days after the latest note was paid; but if these two bills should have been delivered with the first, they are to be considered as parts of it, and then not having been delivered, no bill had been delivered. The rule, therefore, will be absolute. 1844. In re PEACH. Rule absolute. PRYOR and Another v. SwAINE. and The agent of plain has been sug whose name gested by plain tiffs' attorney, is not a good attesting wit ness to the execution of a warrant of attorney by the defendant, under the 1 & of his free THE defendant, in the above action, had executed a The London warrant of attorney, in October, 1839, to enter up judgment tiff's attorney, against him in the above action. The attorney attesting his execution, one Armigal Wade, was the brother, general London agent of the plaintiffs' attorney. affidavits were contradictory with respect to the nomination of Mr. A. Wade, by the defendant, as his attorney: but so far as their contents are material, will be found to be referred to in the judgment. In the bill of costs, which the defendant paid to the plaintiffs' attorney, shortly after the execution of the warrant, besides charges "for writing to agent with appointment as to getting warrant of attorney executed"-" for attending you as to execution of warrant of attorney;" were the following items relating to service done, and money paid by the London agent, in and about the execution of the warrant of attorney; which were, very in the first instance, charged against the country attorney, and by him transferred into his bill against the plaintiffs, which the defendant had ultimately to pay: "for preparing the affidavit of its execution, and the commissioner's fee for the oath, and also for filing the warrant." Mr. Armigal Wade, the attorney attesting the execution, had since died. A rule nisi having been obtained in Hilary Term, to set choice, adopted him as his attorney; where it appears, that he was acting also as agent for the plaintiffs' attorney action. in the trans Where a party is under terms to file a certain day, and by reason able accident, of some excus he omits to do so, the rule for permission to use an affidavit subsequently filed, is a rule nisi only, in the first instance, 1844. PRYOR aside the execution of the warrant of attorney, on the ground that the attorney attesting the execution, had not been and Another nominated by the defendant or chosen by him, which was enlarged to Easter Term, on the terms that the plaintiffs should have till the 10th of April to file their affidavits; v. SWAINE. Montagu Chambers, in the present Term, moved, that the plaintiffs should be at liberty to use an affidavit, which was sworn in February, but had not been filed till the 12th of April; on the ground, that it had been mislaid by mistake, and when wanted for the purpose of filing it, could not be found till the 11th of April. The affidavit in support of this motion, did not state when the loss was first discovered. He submitted, that the rule would be absolute in the first instance. WIGHTMAN, J., however refused to grant any but a rule nisi; observing, that such had been the course pursued in several late instances of similar applications in the full Court. Rule nisi (a). Montagu Chambers afterwards shewed cause against the original rule, and produced affidavits to the effect, that defendant had exercised his free choice in the matter, and that Mr. Armigal Wade had been paid for his attendance by the defendant himself. He contended, that even had the attorney been named by the plaintiffs' attorney, if the defendant, of his free choice, had adopted him as his attorney in the transaction, it was sufficient within the statute. Haigh v. Frost (b), Bligh v. Brewer (c), Oliver v. Woodroffe (d). (a) Fitzherbert afterwards shewed cause against this rule, citing Turner v. Unwin, 4 Dowl. 16; and Wright v. Lewis, 8 Dowl. 298; but offered to allow it to be made absolute by consent, on payment of costs; which was accordingly done. (b) 7 Dowl. 743. (c) 1 C., M. & R. 651. See S. C. 3 Dowl. 266. (d) 4 M. & W. 650; See S. C. 7 Dowl. 166. 1844. PRYOR Fitzherbert, in support of the rule. The chief point on which the defendant relies, is, that Mr. Armigal Wade was so mixed up with the plaintiffs' attorney in the transaction, and Another that he cannot fairly be considered as acting for the defendant within the meaning of the statute. Sanderson v. Westley (a), Rice v. Linstead (b). Cur. adv. vult. COLERIDGE, J.-The questions of fact, in this case, are two: First, whether Armigal Wade, who attested the execution of the defendant, can be said to have been named by him. As to this, the affidavits are at variance on a material point; but the attestation having taken place in 1839, and every defect now relied on being then known to the defendant, and Armigal Wade, the only person who could throw more light on this part of the transaction, being now dead, it seems but reasonable to rely on the answer made by the plaintiffs' affidavits. According to them, the warrant having been prepared in the country by George Wade, and he having, at the defendant's request, suggested the name of an attorney in London, to whom the defendant might, if he pleased, apply, the defendant received the warrant from him, and subsequently went with it to that attorney, by whom it was attested. Under these circumstances, it is clear, that the defendant had and exercised such free choice, that the London attorney must be considered as virtually chosen by him, although the knowledge of his name and residence was first communicated to him by the plaintiffs' attorney. The second question is, what was the general character of this London attorney, and especially in what character did he act in this transaction? Now, it is clear, I think, that he was the general London agent of the plaintiffs' attorney, and that he acted as such, in parts, at least, of this very transaction. The defendant produces the bill of costs, which bill was paid to the plaintiffs' attorney, and we find (a) 6 M. & W. 98; See S. C. 8 Dowl. 412. v. SWAINE. 1844. PRYOR v. SWAINE. from it that he took all the steps subsequent to the execution, which are usual and necessary for completing the and Another security: and, further, in the same bill, are contained charges, which can only relate to service done and money paid by the London attorney in and about the very execution-these charges, not made directly by him to the defendant, but, in the first instance, made against the country attorney, and by him transferred into his bill against the plaintiff which the defendant, of course, was to pay, seem to prove incontrovertibly, that, at the time, when attention was not alive to the consequences, the London attorney considered himself, and was, by all, considered, as acting as the agent for the other. If such be the state of the facts, it seems to me, that this attestation was, in fact, an attestation by the plaintiffs' attorney. No real distinction can be made between the principal and agent, either as to the act done, or the duty attaching to the party in the doing it. It must be considered as an act done by the principal, and as that principal was the plaintiffs attorney, he could not contract any obligation to the defendant, adverse to the interests of the plaintiffs, and could not stand, therefore, in that relation, towards him, which the statute requires of the attesting attorney. This rule must, therefore, be made absolute. Rule absolute. Where the HEATH V. WHITE. PEACOCK shewed cause against a rule obtained by party attempt- Ball, calling upon the plaintiff to shew cause, why the ing to serve a writ of sum mons went to the defendant's house, and seeing him standing at a closed window, on the ground floor, told him, in an audible voice, the purpose for which he came, and threw a copy of the writ down in his sight, and in the presence of his wife, who had come out of the house, and who had denied that he was at home, and left it lying there, in the defendant's garden: Held, on motion, to set aside the appearance entered for the defendant, and all subsequent proceedings, that the above was not a sufficient service. appearance entered for the defendant in this cause, the declaration and notice thereof served on the defendant, and all subsequent proceedings thereon should not be set aside, on the ground of irregularity. The circumstances of the case were these. The plaintiff had entered an appearance for the defendant, and served him with notice of declaration, on affidavit of personal service of the writ of summons, by one Charles Thornton. The defendant had obtained the present rule on an affidavit made by himself, stating that no writ of summons purporting to be issued out of this Court in this cause, nor any copy thereof, had been served upon him, nor had any copy of the said writ ever come to his possession or knowledge; and that the first intimation or notice which he had of any proceedings having been taken against him, was the receipt of the notice of declaration. In answer to this, was produced an affidavit of C. Thornton, the party serving the writ of summons, to the following effect:-That on going to defendant's place of residence, he saw the defendant's man-servant, who, on inquiry, stated that his master was at home; that upon knocking at the front door of the defendant's house, he was told by a female, who answered it, that the defendant was not at home; that afterwards the defendant's wife came to the door, and said he had been gone out some time, but would be back in ten minutes; that deponent waited upon the premises for ten minutes, and then again knocked at the front door of the house; that the defendant's wife then repeated that the defendant had gone out; that deponent having turned round towards the window of the house, saw the defendant looking through it at him; that he thereupon immediately called out to him as loud as he could, stating that he had got a writ against him at the suit of the plaintiff, and held the copy for him to see, and threw it down and left it for him in his, the defendant's, garden, before the said window, whilst the defendant was present thereat, the defendant's wife being at the time close to the deponent's elbow, and deponent told her she 1844. HEATH v. WHITE. |