Bartoline v. Heartle

Johnson J.
delivered the opinion of the Court.

It is impossible that the attorney can answer as to what his client does, or does not know; and the interrogatories are directed only to the conscience of the latter. The 36th rule of Court, too, expressly requires, that the notice and interrogatories shall be served on the party himself; and that if he is out of the State, his examination shall be taken by commission. Whether, therefore, we regard the rule itself, or the objects of the notice, the service on the attorney was a nullity ; and the Circuit Court was correct in refusing to take the interrogatories pro confesso, against the plaintiff.

The rule does not, it is true, provide for the case, where a party is absent, and his residence unknown: But I have no doubt, but that upon a proper case made, the Court would stay proceedings, until the party did answer. In this case, a continuance was offered to the defendant; but he refused to accept it: and it was his own error to go to trial without proof to establish his defenefe. Motion refused.