
    [Lancaster,
    November, 1827.]
    GRACY and another against BAILEE.
    IN error.
    Where a rule of court directs notice to 'be served on a party, service on the at* , torney is not sufficient, though the attorney, on receiving notice, makes no objection.
    Where suit is brought for an alleged balance of an account, which the defendant contends is not the true balance, or where the defendant alleges an account of the plaintiff to which originally he did not object, from ignorance or mistake, to be erroneous, and calls for it on the trial, for the purpose of disproving it, the fact of his calling for it, and reading it to the jury, is no evidence of its correctness. The jury are to judge of the effect of the account, taken in connexion with all the other evidence givén in the cause, and considering the purpose for which it was called for and read.
    A tradesman who moves from one part of the country to another, and there does work, without any agreement as to price, is entitled to the usual price of the place where the work is done, and not that of the neighbourhood from which he removed.
    On the trial of this cause, in the Court of Common Pleas of Lancaster county, the plaintiffs in error, who were also plaintiffs below, offered the depositions of witnesses, taken under a commission to Baltimore: after having proved service of notice of the commission and a copy of the interrogatories, on the defendant’s attorney; the counsel for the defendant objected to the testimony, because the notice had not been served on the party, agreeably to a rule of court. The objection was sustained by the court, who sealed a bill of exceptions.
    At a subsequent stage of the cause, the plaintiffs again offered in evidence the depositions above mentioned, at the same time offering to prove, in addition to the evidence before given on the subject of notice, that when the notice was served on the defendant’s attorney, he received it without making any objection whatever. The court was of opinion that the additional evidence, in relation to notice, might be received; but that if all vvas proved which was offered on that subject, the depositions taken under the commission, were not admissible in evidence. The plaintiffs’ counsel again excepted to the opinion of the court.
    At the conclusion of the trial, the counsel for the plaintiffs submitted to the court for their opinion, .the following, among other legal propositions. The facts, however, upon which these propositions were founded, did not appear in the paper book.
    
      Proposition, That the plaintiffs’ bill read in evidence to the jury by the defendant became evidence for the plaintiffs, and is prima facie evidence of its correctness, and in order to destroy its effect, it is incumbent on the defendant to show its incorrectness.
    
      Answer. The plaintiffs also rely on the bill, which was made out by them, and being called for by the defendant, they say it is thereby made evidence for them, as to the items contained in it. But I do not think this position sustainable, or that it is even prima facie evidence of its correctness.
    
      Proposition. That where a man employs a mechanic from Baltimore, to do work in Marietta, the presumption of law is, that the employer shall pay Baltimore prices, if they be higher than those at Marietta.
    
    
      Jlnswer, (after stating the proposition.) I cannot so instruct you, because I know of no such presumption.
    
      Buchanan, for the plaintiffs in error.
    The words of the rule under which the commission to Baltimore was rejected, and which was adopted at April Term, 1811, are, that the notice shall be served “ on the adverse party.” The word party was here used in a peculiar sense, and means the party himself, or his representative, who is his attorney. The rule permits either party to enter a rule for a commission, and it will hardly be contended that this may not be done by the attorney. It is a general principle, that notice shall be served on the attorney, and a different one would be attended with great inconvenience, where the party himself resides at a distance. In this case the attorney did not object to the service, which brings it within the decision in Newlin v. Newlin, 8 Serg. & Rawle, 41. 1 Browne’s R. 14. The defendant having called for the plaintiffs’ bill, and read it to the jury, made it evidence for the plaintiffs by a well established principle. From circumstances, the presumption was, that the Baltimore prices were to be charged.
    
      Champneys and Porter, for the defendant in error.
    Service on the attorney is not good, where there is a rule of court prescribing service on the party. The case in 8 Serg. & Rawle, 41, turned on the supposed effect of the sickness of the attorney; and it did not appear that any rule of court required service on the party. The insufficiency of service of notice on the attorney, in a case like the -present, was expressly decided in Nash v. Gilkeson, 5 Serg. & Rawle, 352.
    
   The opinion of the court was delivered by

Huston, J.

The plaintiffs offered in evidence the commission to take the deposition of a witness in Baltimore. This was objected to, because notice of the commission and interrogatories was not served agreeably to the rule of court. The proof was that the notice was served on defendant’s attorney, who made no objection to receiving it whatever. The rule of court in this county on the subject is a copy of the rule of the Circuit Court of the year 1805, and requires the notice to, be served on the adverse party. That rule was well understood — under it a notice on the attorney was not good, and to remedy this the Circuit Court, in 1811, made another rule that the notice might be served on the party or his attorney. The difference between a service on the party, and on his attorney, is well understood; several of the rules of this court express that the notice may be served on the party, and Others may be served on the party or his attorney. The same distinction will be found in several of our acts of assembly, particularly in the arbitration act, and its supplements. But it is said there is a decision of this court, 8 Serg. & Rawle, 41, that service on an attorney is good unless he objects. I would observe that a notice may be, and often is given to an attorney, when engaged in another matter, and he receives it without knowing at the time what it is. No rule of court is mentioned, or alluded to in 5 Serg. & Rawle; of course it decides that in the absence of any rule on the subject, a notice to take depositions, like any other notice in a cause, may be served on the party or his attorney, and be good, especially if the latter on receiving it makes no objection. That this was the meaning of the court, will appear by referring to 5 Serg. & Rawle, 352, where it is expressly decided that where the rulé of court prescribes notice on the party, a notice on the attorney is not good. There was then no error in rejecting this deposition. Where the court who made the rule decide on a printed rule of their own court, we will not readily reverse their decision. And in this case it is a rule adopted from another court, who had put the same construction on it, and made a new rule to get clear of that construction.

Two positions were stated to the court as being law, and the court gave an opinion on each against the plaintiffs, and were right in each case.

When a party calls for the account of his opponent, and on its being produced, reads it to the jury, it may generally be considered as making it to some extent, evidence; but where suit is brought on what is alleged to be the balance of an account, and the defendant alleging that not to be the true balance; or where the defendant alleges that an. account of the plaintiff, which he did not originally object to from ignorance or mistake, is erroneous, and calls for it expi’essly to disprove some of the items, and the amount charged on every one of them, and does give evidence to this effect, it would have been a great error in the court to tell the jury, that the fact of the defendant calling for it, to disprove it, was any evidence of its correctness. The jury are always to judge from the whole evidence. It is now too common to select a part of the testimony, and ask the court to give an opinion on that part alone. It was perfectly immaterial what would have been the effect of this account if read alone. The true question was, what was the effect of it taken in connexion with the other testimony in the cause, and considering the purpose for which it was called and read.

The next point does not arise in the cause. There is no proof that the plaintiffs were induced by the defendant to come from Baltimore to Columbia. But if there was, a tradesman who moves from one pjirt of the country to another, and there does work without any agreement as to price, is entitled to the usual price of the place where the work is done, and not the price of the neighbourhood from which he removed. This was decided here, and will be found in 12 Serg. & Rawle, 409.

Judgment affirmed.  