p. 375The Chautauque County Bank vs. Risley.Headnote
Where a notice occupies the half of a sheet of paper, the other half may be used as a wrapper, under the 4th rule of May term, 1840, though the sheet remain entire.After the attorney of record has left the state with the fixed intention of taking up his residence elsewhere, his name can no longer be used in conducting the suit even by his law partner.
Motion by the defendant to set aside an inquest taken at the Chautauque circuit in January last. The attorney of record for the plaintiffs left the state in November last, with the intention of settling elsewhere, if he found a place which pleased him, leaving his law partner in charge of the business. In December following, the partner served notice of trial and inquest by mail, in the name of the attorney of record. The notice and the copy of an order in the cause were written on the half of a sheet 'of paper, and the whole sheet was then folded in the form of a letter, so that the blank half sheet served as a wrapper for the half which contained the notice and order; but the two half sheets were not separated. The postage was paid, and the letter sent by mail to the defendant’s attorney. He refused to receive the notice, and re-mailed it to.the partner of the plaintiffs’ attorney, insisting that it was not enclosed in a wrapper as the rule required, and that the name of the attorney of record could not be used after he had left the state. The plaintiffs proceeded and took an inquest, which the defendant now moved to set aside.
M. T. Reynolds, for the defendant,
cited Anonymous, ( 1 Hill, 217 , 218.)N. Hill Jun., for the plaintiffs.
Where the notice or other paper occupies only one of the halves of a sheet, the other half, on
p. 376which the letter is directed, is a sufficient wrapper within the meaning of the rule. We have so held on several occasions.
After the attorney of record has left the state with the fixed intention of taking up his residence in another place, his name can no longer be used for the purpose of carrying on his unfinished business. It cannot be done by his law partner. There should be a substitution. The attorney in whose name a lawsuit is conducted, must reside within the state, so that he can be reached by the orders of the court in case his client or the opposite party should complain of any mal-practice. The papers before us leave the question in some, doubt whether the attorney had ceased to be a resident of this state at the time the notice was served. 'The defendant has merits; and, on the whole, the proper course will be to set aside the inquest, and leave the costs to abide the event of the suit..
Ordered accordingly.