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Manning, ex parte
59| Ryers v. Hiliyer

. 112 Martin V. Bradley et al. 124 Richardson's Case

63 Masters v. Edwards

515 Mayor and Corporation of N. Y. v. Manhattan Company .

507

S v. Scott

543 Sadler & Craig v. Church . . 297 Miller v. Drake 45 Seaman v. Davenport

7 -- y. Livingston

349
v. Drake

9 Milward v. Hallett

344 Sheffield v. Watson Moyle v. Gillingham .

73 Shutter v. Hallett

115, 518 Mumford v. Smith . 520 Smith v. Scott

284 Muir and Boyd v. Unit . Ins. Co. 49 Smith & Stanley v. Wright .

43 Hurray v. Unit. Ins. Co. 237 Spencer v. Webb

118 v. Sampson

498 Steele ads. Tennent, and Fuller N ads. Tennent

68

Stuart v. Rich Nash v. Tupper

402 Neilson v. Cox et al. .

121 Nichol and Thompson v. Col. Ins.

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345
Ten Eyck and Elmendorf v. G. &
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427
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Townsend v. N. Y. Ins. Co.

4 Trusdale v. Jefferies (n)

190 Page v. Cabel

412 Parkman y. Sherman

344 People v. Beebe et al.

. 129

U People v. Youngs

37 v. Shaw

. 125 Union Turnpike Co. v. Jenkins . 381 v. Rust

131 v. Crosswell

149 v. Denslow.

177

V v. Dole

. 181 v. Freer

394, 485 Van Der Mark v. Jackson v. Brown

416 Vandyck v. Vanbeuren & Vog-
v. Everitt

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V. Judges of Washington 511 Van Ness. v. Gardner

59 Pettingal, q. t, v. Brown . 168 Van Schaick v. King . Peyton v. Hallett

363 Phelps v. Eddy .

252

W Post v. Wright

111 Potter v. Briggs 57 | Wallace v. Lockwell

67 Prior et al. v. Brown 67 Waterbury v. Delafield

. 513 Purdy'v. Delavan

304 Watson v. De Peyster & Co. . 66 Way v. Bradt

. 116 v. Carey

191 R Weaver v. Bentley

47 Webb v. Wilkie

153 Rathbone v. Blackford .. 343, 588 Weed v. Ellis

115 Randal, in re 513 Wells v. Newkerk.

191 Remsen v. Isaacs 22 Winton v. Saidler

267 Renaudet v. Crocken .

167 Woods v. Van Ranken. 122 Reynolds, ex parte .

500 Riddles v. Mitchell

11 Ripley v. Wardell .

175

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CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT

COURT OF JUDICATURE

OF THE

STATE OF NEW YORK,

IN MAY TERM, IN THE TWENTY-SEVENTH YEAR OF OUR INDEPENDENCE.

BOGERT and LEWIS, Executors of BOGERT, against HIL

DRETH, Sheriff of Montgomery,

In an action for an escape from prison in one county, that the judgment on

which the suit against the prisoner was founded is of record in another county, is not such a substratum as makes the action local where the judg.

ment is recorded. Quere, if the county where an escape happens be not the proper county for

the venue ?

This was an action for an escape from execution. The venue was laid in the city of New-York.

The defendant, at a former term, on an affidavit stating the cause of action (if any) to have arisen in the county of Montgomery, and adding that his witnesses, who were numerous, resided in that county, moved to change the venue from New York to Montgomery.

It was then contended, that this action was so far local that the plaintiff was bound to lay the venue in the county VOL. I.

1

Bogert v. Hildreth.

where the prisoner had escaped ; but the court was of opinion that the suit was transitory; that the plaintiffs had a right to lay the venue where they pleased, in the first instance, and the defendant enjoyed the common privilege of changing it on the usual affidavit. A rule was, therefore, made, that the venue should be changed from the city of New-York to Montgomery, unless the plaintiffs, within twenty days, should stipulate to give, on trial, material evidence, arising in the city of New-York. The plaintiffs did

stipulate accordingly, and transmitted a notice of it to [*2] the *defendant's attorney, by mail, to Johnstown, in

Montgomery county; four days after which, and be. fore, according to the course of the mail, the defendant could have received the notice, he pleaded in bar fresh pur• suit and recaption before action brought.

Riggs now moved, that the plaintiff be discharged from his stipulation, on the grounds, first, that the substratum of the action being the judgment against M'Donald, which was filed in New York, the cause of action arose there ;(a) and, secondly, that the defendant, having pleaded before he received notice of the stipulation, had waived(b) the rule for changing the venue.

LIVINGSTON, J., delivered the opinion of the court. This is a motion to vacate a rule entered the last term, "for changing the venue to Montgomery, unless the plaintiffs would undertake to give evidence material to the issue arising in the city and county of New-York." It is now said, that the court committed an error in changing the

(a) See Mellor v. Barber, 3 D. & E. 387. Pinkney v. Collins, 1 D. & E. 571. Clissold v. Clissold, Ibid. 647.

(6) Talmash v. Penner, 3 Bog. & Pull. 12; pleading, pending a rule nisi to change the venue no waiver, and the venue changed. Nor taking out a summons for further time to plead. Wilson v. Harris, 2 Bos. & Pull. 320. Shipley v. Cooper, 7 D. & E. 698. Moses v. Stevenson, 1 Taun. 58. Post, vol. II.

p. 379.

Bøgert v. Hildreth

venue, because, there being matter of law and matter in pais, material to the issue, in different counties, the plaintiff might elect to lay his action in either; and that, in such cases, it cannot be changed, unless for urgent or particular reasons. This rule, when well understood, is a salutary one, but it does not apply to this case ; it means, that when official acts are done by the defendants in several counties, some of which are matters of record, and others of fact, there the plaintiff has his election. Thus, in the case of Griffith v. Walker, 1 Wils. 336, which was an action against the sheriffs of Radnorshire, for a false return to a scire fa. cias, the verne of which was laid in Herefordshire, it was alleged, on demurrer, that the action ought to have been laid in Radnor, because, whatever acts the sheriff does officially, must be done in his own county, or at least, the law supposes them done there; but the court said, the sheriff may endorse his writ anywhere; and, as it is alleged that he did this in Herefordshire, the plaintiff has his election. to lay his action where he can prove the fact done. Here the return was matter of record, but it is not on that account merely that this election is given, but because the sheriff was the party who made that return, which was the gist of the surt. If this return had, afterwards, been filed (as was no doubt the case) in the office of the court of king's bench, it would not have justified the laying of the venue in that *county. In the case before us, it is said that [*3] the judgment roll against the party who escaped, is bled in an office kept in the city and county of New-York, and, therefore, the venue cannot be changed. This judg. ment was no act of the sheriff's, and, therefore, not like the case of a return made by him in a particular county. Nor is it the ground of this action, which is, emphatically, the escape from the gaol of Montgomery.

A principal reason for permitting a plaintiff to retain the venue where he has laid it, arises from the circumstance of his having material witnesses there. This rule should not be abused by too much refinement. If the recovery against

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