Bogert v. Hildreth. the party who has escaped must be given in evidence on the trial, it may be done by exemplification, which is the proper way; and this may be carried without expense to Montgomery. Bulwer's Case, in 7 Co. 1, only determines, and that on demurrer, that an action for maliciously outlawing the plaintiff might be laid in the county where the capias utlagatum was executed; and not necessarily in Middlesex, where the wrong was commenced by issuing the capias ad satisfaciendum. This decides nothing; for although the plaintiff may, in many cases, in the first instance, choose his venue,(a) it does not follow that the defendant shall not change it, or that the court would not, in that very case, have changed it, on the common affidavit. The case of Cameron v. Gray, in 6 Term Rep. 363, is subsequent to the revolution, nor can the facts be all disclosed. Lord Kenyon would hardly have said (and yet such is the effect of that decision) that all actions for infractions of patent rights are local, and must be tried at Westminster, solely because the patent, which is its substratum issued there. If this be his meaning, we are at liberty, considering the date of this case, to differ from his lordship; and it appears to us, with due deference, that the county in which the right of the patentee was invaded, was the proper theatre of trial; for there, and not elsewhere, the cause of action arose. So, in an action for an escape, unless particularly circumstanced, many reasons occur why a trial should be had in the county from which the prisoner fled. A sheriff ought not lightly to be called out of his county; the witnesses also must, generally speaking, be there; nor should a public officer be subject to the oppression and expense of attending, with his witnesses, at a distance. Yet we are now called [*4] on, not only to sanction *this practice in one case, but to render it universal and permanent; or, in other words, to declare that every sheriff, however distant (a) See Gilbert v. Martin, 1 Lev. 114, 286, Mayor of Berwick v. Ewart, 2 Black. 1069. Bogert v. Hildreth. he may reside, shall answer, in Albany or New-York, for escapes, for no other reason than because the judgment or writ, on which the person was arrested, is to be found in one of those counties. It is astonishing that actions of this kind have ever been regarded as transitory: this, however, without any decision on the point, (a) appears to be the case. Why they should be local, has already been suggested. Much vexation must be the consequence, if we decide (which will be the effect of a vacatur) this rule, that in no case shall a sheriff have a trial of this kind in his own county, because a judgment, which can be proved without the personal attendance of any one, has been rendered elsewhere. Actions of this nature are within the reason of the "act for the more easy pleading in certain suits rendering local certain suits against sheriffs and other public officers;" and it would be a good rule, in which I should heartily concur, to make all actions of this kind triable in the county to which the officer belongs, unless strong circumstances rendered it improper. Upon the whole, we are well satisfied with our decision at the last term. It was full as favor Rolle, J., “An escape in one place is an (a) Motion to change the venue. escape all England over, and not local." Platt v. Sheriffs of London, Plowd. 35. See also Harris v. Wilson, 2 Wend. Rep. 627 A motion to change the venue must be made at the earliest practicable day, and in such season that, if it be denied, the plaintiff will not lose a trial in a county where the venue is laid; if made at a later term it will be denied for that cause; and ignorance of the practice on part of the defendant's attorney will not excuse the delay. Moreland v. Sandford, 1 Denio, 660. In an action against a public officer for acts done by him by virtue of his office, the venue will be changed on his application to the county where the fact complained of happened; but if there be a dispute whether the action be or be not local, the motion will be disposed of upon the usual ground. Allen v. Forshay, 12 Wen. 217. English and American decisions, as to change of venue, referred to, (1 Duni. Pr. 497 to 414.) 1 Cow. 48, n. a. In general, costs are not granted upon denying motion to change the venue. Sill v. Trumbull, 1 Cow. 589. But where the motion is denied, because the mover's papers are defeotive, costs will be allowed. Ib. See Hogan's N. Y. Digest, tit. Escape and Venue. Bogert v. Hildreth. able to the plaintiff as he had any reason to expect, and ought not to be disturbed. RADCLIFF, J.,(a) concurred, observing, however, that, according to the English practice, he took the rule to be, that, where evidence material to the plaintiff's action arises in different counties, the plaintiff has a right to elect the county in which to lay his venue, and to keep it there; that the rule is the same, whether the evidence consist of matters in pais in each county, or of record in one, and in pais in another. Pursuing that practice, the plaintiffs would be entitled to retain the venue in New-York. But he thought this a question in which we had a right to prescribe a rule for ourselves. Applications to change the venue must, in general, rest in the discretion(b) of the court, and be regulated by the circumstances of the case. Motion denied. (a) Who referred to the following authorities: 7 Co. 1. Bulwer's Case, Cro. Eliz. 574. Wils. 336. Plowd. 37. b. Sty. 107. 2 Bl. Rep. 240. 2 D. & E. 238. Ibid. 275. 6 D. & E. 363. (b) To facilitate the ends of justice is the principle on which courts, in transitory actions, change the venue. Therefore, if the cause of action wholly arise, or the defendant's witnesses reside, in another county, (Allen v. Brace, post, 107. Low v. Hallett, 2 Caines, 374. Metcalf v. Clark and Watkins, 5 Johns. Rep. 361. Foster v. Taylor, 1 D. & E. 781. Holmes v. Wainwright, 3 East, 329,) the venue will be changed. Though it is said that the defendant must also stipulate to give evidence of some material fact happening in the county to which he moves to carry the suit. Gourley v. Shoemaker, 1 Johns. Cas. 392. When, therefore, the defendant's witnesses reside in a county adjoining, or near to that in which the venue is laid, it will not be changed. Mumford v. Camman, 3 Caines' Rep. 139. Gerard v. Floyd, Į Sid. 185. And as the power which the court exercises over venues is the result of its equitable jurisdiction, when the plaintiff offers to bear the expense of conveying the defendant's witnesses to the place of trial, (Worthy v. Gilbert, 4 Johns, Rep. 492,) or his witnesses reside where the venue is laid. Du Boys v. Fronk, 3 Caines' Rep. 95. Manning v. Downing, 2 Johns. Rep. 453. Stoutenbergh v. Legge and others, 2 Johns. Rep. 481,) or in a third county, (Spencer v. Hulbert, 2 Caines' Rep. 374. Clark v. Reed, cited 10 East, 33. S. C. 1 N. R. 310,) or the plaintiff show the defendant's affidavit to be untrue, from the cause of action arising in more counties than one, and will undertake to give material evidence in one or the other, (Hunt v. Bridge Townsend v. The New York Insurance Company. TOWNSEND against THE NEW-YORK INSURANCE COMPANY. If notice of applying for a commission specify names of commissioners, and the party served do not then object, he is concluded. Quare, whether costs should not follow on applications for time? MOTION for a commission to examine. This cause had been once deferred, for want of testi ford, 1 Taun. 259,) the venue will not be changed. See Woods v. Van Ranken, post, 122, The New York Code of Procedure (secs. 123-6) provides: Actions for the following causes, must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial, in the cases provided by statute: 1. For the recovery of real property or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property: 2. For the partition of real property: 3. For the foreclosure of a mortgage of real property: 4. For the recovery of personal property, distrained for any cause. Actions for the following causes, must be tried in the county where the cause or some part thereof arose, subject to the like power of the court, to change the place of trial in the cases provided by statute: 1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offence committed on a lake, river, or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offence was committed: 2. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who by his command or in his aid, shall do anything touching the duties of such officer. In all other cases, the action shall be tried in the county in which the parties or any of them shall reside at the commencement of the action; or if none of the parties shall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute. If the county designated for that purpose in the complaint, be not the proper county, the action may, notwithstanding, be tried therein, unless the defendar t, before the time for answering expire, demand, in writing, that the Townsend v. The New York Insurance Company. [*5] mony, to acquire which a commission had issued. The defendants, afterwards, but previous to the last circuit, gave notice to the plaintiff that they should, on affidavits, (the copies of which were annexed,) move for a commission to examine witnesses, and specified the names of the commissioners. At the time of serving this notice, the defendants offered to stipulate not to delay the cause. The plaintiff did not assent to join in the commission, and, in a few days, gave the regular notice for trial. At the circuit an application was made to postpone the cause, on the usual affidavit of the want of that testimony, to obtain which, the commission noticed was to be sued out. The plaintiff's counsel objecting, he had till the next day to produce an affidavit of a former delay. Not doing this, the cause stood over of course. Hoffman now moved for the commission. Hamilton objected to its being directed to the commissioners named. Per Curiam. The commissioners having been named in the notice of the motion, and the plaintiff having neither joined nor objected, is now concluded.(a) trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section. The court may change the place of trial in the following cases: 1. When the county designated for that purpose in the complaint is not the proper county: 2. When there is reason to believe that an impartial trial cannot be had therein: 3. When the convenience of witnesses and the ends of justice would be promoted by the change. When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties, in writing duly filed, or order of the court, and the papers shall be filed or transferred accordingly. (a) The objections should be made by affidavit, stating the facts on which grounded. Biays v. Merrihew, 3 Johns. Rep. 251. |