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DOCUMENT 6 A."

vs.

Territory of Wisconsin, ss. - July Term, 1845. The United States, on the relation

of John Y. Smith, Superintendent of Teritorial Property of the On application for perTerritory of Wisconsin,

í emptory mandamus, The District Court of Milwaukee

County, Respondent.

On this application all the preliminary steps are agreed to have been properly taken, and that the answer of the District Court of Milwaukee County, as respondent, presents to the consideration of this court the question, whether it had and should have exercised jurisdiction in the case of the Territory of Wisconsin against James D. Doty, John F. O'Neil and Augustus A. Bird, in the action on the case, sent from the District Court of Walworth county to the said District Court of Milwaukee county, on change of venue allowed on application of plaintiffs ; it appearing in the record of the case, that one change had previously been granted in the same case, on application of defendants, by the District Court of Iowa county to the District Court of Walworth county.

This question involves the construction of the 10th section of the "act to amend an act of the Revised Statutes of 1839, entitled 'an act concerning the Supreme and District Courts,'” providing for a change of venue in civil cases. The section provides—"If either party, in any civil cause, in law or equity, which may be pending in any district in this Territory, shall fear that he will not receive a fair trial in the county in which such cause is pending, on account that the judge is interested or prejudiced, or is related to, or shall have been of counsel for either party; or that the adverse party has an undue influence over the minds of the inhabitants of the county where the action is pending; or that the inhabitants of such county are prejudiced against the applicant; or that a large number of the inhabitants of such county have an interest in the question involved in said suit adverse to the applicant, so that he cannot expect a fair trial ; such party may apply to the court in term time, or to any judge in vacation, by petition, setting forth the cause of application, and praying a change of venue, accompanied by an affidavit verifying the facts in the petition stated ; and such court or judge, reasonable notice of the application having been given to the opposite party or his attorney, shall, if satisfied of the truth of the allegations, award a change of venue to some county where the causes complained of do not exist; and in all cases where the judge is interested, or is related to, or has been of counsel for either party, the court, in term time, may award a change of venue as aforesaid, in their discretion, without any application from either party."

The 11th section provides that "the district court of the county to which said cause or matter shall be sent for trial, shall proceed to trial, in the same manner, and to give judgment and award execution, as though the said cause had not been removed."

The 10th section, and part of the 11th section quoted, are all of the act which bear upon the question before the Court. With these provisions of the statute before us, we are called upon to decide whether more than one change of venue can be allowed in the same cause.

It is clear that the number of changes is not limited in express terms. Then do the spirit, intent and meaning of the provisions referred to, limit the number of changes ?

We are of opinion that the change is only limited when the legal cause therefor ceases to exist. Whenever a party in any cause can satisfy the court, or judge in vacation, in the manner prescribed by law, that one of the causes for change of venue, expressed in the 10th section, really exists, it becomes imperative on the court, or judge in vacation, to order a change of venue to a county where the cause does not exist. A construction, that only one change is allowed, makes the law unmeaning and odiously partial. All the benefits would be extended to one party, probably the more cunning, and the other would be entirely excluded, when the law expressly provides that either party shall have the advantagess of a change, upon making out satisfactorily to the court or judge, one or more of the causes specified in the 10th section. If we determine the changes by any other rule than the real existence of the causes designated in the law, then we make it, what the Legislature certainly never intended, a partial and unequal law, giving to the cunning an advantage over the plain unsuspecting party. The first applicant derives all the benefit of the law, and the other, for whose equal protection it was made, may be seriously injured by being compelled to submit the trial of his rights to a prejudiced or interested court and jury, without remedy or relief. A learned jurist has said that “this power is discretionally exercised, so as to prevent, and not to cause a defeat of justice." 3 Black. Com. 294.

We will suppose that a plaintiff in a cause pending applies for a change of venue to some other county, upon proper ground made out to the satisfaction of the court, or judge in, vacation, and the venue is changed to another county ; and when the cause is called for trial, the judge suggests that he is interested with the plaintiff, or is related to him, or has been of counsel for him in the identical matter in dispute. The judge of the court cannot exercise the discretion vested in him in such cases by the provision of the 10th section, for construction says, there has been one change, and you must try the cause. The defendant cannot object, although the law says he may; for the same construction says, there has been one change of venue, not on your application true, but there having been one in the cause, you must now submit to have your rights investigated and decided on principles of law expounded by a judge whose interest is adverse to yours and identical with that of the plaintiff, or a judge who is related to plaintiff, or a judge who has been of counsel for plaintiff in the very matter now in litigation between you and plaintiff.

A construction which would operate so oppressively on one party, and impose upon an upright judge the necessity of trying a cause against every, feeling of delicacy and propriety, is tertainly not sustained by the spirit, intention and obvious meaning of the act. James D. Doty, John F. O'Neil and Augustus A. Bird; and * do hereby order and direct, that a peremptory writ of mandamus do issue from this Court, directed to the District Court of said Milwaukee county, commanding said court to "proceed to trial of said cause, in the same manner, and to give judgment and award execution, as though the said cause had not been removed."

No change of venue can be allowed without a sufficient legal cause made to appear satisfactorily to the court, or judge in vacation. The want of a cause known to the law is the only restriction which we can recognize in the provisions of law referred to in this opinion.

We think it would have been sound policy in the Legislature to have restricted the change to one in favor of each party on application, leaving the change discretionary with the judge (as we now understand it to be) without limit, where either of the causes enumerated exists. It is not the province of courts to legislate, however, but to pronounce what they understand to be the law.

It is insisted that the provision in the 11th section required the Judge of the District Court of Walworth county imperatively to proceed and try the cause. We do not so understand the provision of the law, The District Court of Walworth was “required to proceed to trial in the same manner, and to give judgment and award execution, as though the cause had not been removed." The obvious meaning of this provision is, to place the cause in the District Court of the county to which the venue is changed, precisely as though it had originated there, to be proceeded in, as other causes in the court, without restriction or limit upon any of the legal rights of either party.

The court to which the application for a change of venue is made must be satisfied of the truth of the "allegations" upon which the application is based ; and herein consists the security against abuse, or causeless change of venue. The application may be made too late under the rules and practice of the court, for a party may waive his right by taking other steps in his cause. These are matters of consideration for the court applied to, and after due consideration and an order of change to another county, jurisdiction of the cause immediately attaches to the District Court of that county.

We are therefore of opinion that the said District Court of Milwaukee county should have entertained jurisdiction of said action on the case by the Territory of Wisconsin against

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