
    Anthony Bartoline v. J. T. Heartle.
    If the defendant in sum. pro. desires the benefit of the plaintiff’s oath, he must serve him personally, with interrogatories ; service on his attorney is not sufficient. Nor will the circumstance that the plaintiff is absent from the State, and his residence unknown, authorize the defendant to take the interrogatories pro confesso, on proof of service upon the plaintiff’s attorney; although it would afford a ground for an application to the Court, to stay proceedings, until the interrogatories are answered.
    Motion to reverse the decree of Mr. Justice Huger, at Charleston, May .Term, 1830.
    
      The reference in the opinion delivered by the Court, to the facts on which the motion was grounded, renders any detail of them unnecessary.
    Seymour, for the motion.
    Yeadon, contra.
    
   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.  