§ 4. The person in the adverse possession, according to the provisions of the second and third sections of this chapter, his personal representatives, heirs, or assigns, or the person under whom such occupant claims or holds, his personal representatives, heirs, or assigns, may give in evidence under the general issue, or may plead the sale or purchase of any pretended right or title in violation of the second section of this chapter, or any contract or agreement made in violation of the third section of this chapter, in bar of any suit or action against them to recover the possession or title to the land so held. Who may prove such contract in bar of action. sworn. § 5. Parties in possession, or the person under whom the Parties may be occupant holds the land, may compel the parties to such contract to testify on the trial, or make discovery by answer to petition in equity. The person so compelled to give evidence, or to make discovery under this section, shall not be subjected by such discovery to any penal or criminal prosecution for the offense of champerty and maintenance, nor shall such evidence or discovery be used in any such prosecution. § 6. Persons in possession may purchase in the adverse outstanding title or claim, and such purchase shall be good and inure to the benefit of the person making the same, or to the person under whom he claims and holds the lands so possessed. § 7. None of the forfeitures declared by this chapter shall apply to cases of controversy between lessor and lessee, mortgagor and mortgagee, vendor and vendee, trustee and cestui que trust. Adverse title may whom. be purchased by forfeiture does Cases to which not apply. denied to both § 8. Neither party to any contract made in violation of Right of action the provisions of this chapter, shall have any right of action parties to chamor suit thereon. pertous contract. 4. Unless there be fraudulent representations in regard to the possession, the vendee of land in adverse possession at the date of the deed cannot maintain any action against the vendor on his covenant of warranty. (Graves vs. Leathers, 17 B. M., 668.) 5. The widow's possession of her dower land will be presumed amicable, and a sale by the remainderman will not be deemed champertous unless it be shown that her holding was openly and notoriously adverse to those having right. (Frazier vs. Naylor, 1 Metcalfe, 595.) 6. Although a champertous contract be rescinded after action commenced, the statute will apply and the bar prevail. But if the rescission be in good faith, and made before action commenced by the vendor, the bar will not be interposed. (Hunnan vs. Brewster, 7 Bush, 355.) CHAPTER 12. CHANGE OF VENUE. ART. 1. When and how to be obtained-To what Court-Effect of. 1 R. S., 228. Change of venue 4. Governor to appoint Judge in certain cases. ARTICLE I. Change of Venue in Civil Cases. § 1. A party to any civil proceeding triable by a jury in a circuit court may have a change of venue when it appears when, how, that, owing to the undue influence of his adversary in the county, or to the odium which attends himself, or his cause of action or defense, he cannot have a fair trial. & by whom obtained. quired. § 2. Before an order for a change of venue shall be made, What notice re- ten days' notice shall be given to the party, if he is in this State; if not, then to his agent or attorney, if he have one; if none, then by leaving the notice with the clerk of the court in which the action is pending, who shall immediately indorse it filed, and put it with the papers in the action. how made. 3. Application for an order for a change of venue must Application for, be made by petition, verified by the affidavit of the party, supported by the affidavits of at least two credible housekeepers of the county in which the action is pending. To what county must be made. § 4. A change of venue shall be made to the circuit court of an adjacent county most convenient to the parties to the action, their witnesses and attorneys, to which there is no valid objection; and the order may be made subject to such equitable terms and conditions as safety to the rights of the parties may require, and the court or judge in his discretion may prescribe. 5. The order shall be void, unless the party obtaining Order for, when it, within ten days, pays to the clerk a sum sufficient to cover the expense of travel in making the removal. void. respect of. § 6. Immediately on the making, or receipt of the order, Clerk's duty in the clerk shall make out a transcript of the record pertaining to the cause, which, with the original papers therein, he shall, as soon as practicable, carry or send by some discreet person to the clerk of the court to which the cause is removed the former clerk being responsible for the conduct of the person employed. § 7. If the papers are transferred ten days before the first day of the next term of the court to which the cause is removed, it shall stand for trial at that term, otherwise not until the term next succeeding. (a) § 8. The parties to any suit may, by consent, have an order in or out of court for its removal to any other court.(b) § 9. The court to which a cause is removed shall have the same power as to its trial and final disposition, as that from which it came, and no exception to the jurisdiction of the latter shall be allowed in favor of the party obtaining the removal.(c) -only one allowed to same same § 10. There shall not be more than one order of removal Order of removal of the same cause at the instance of the same party, nor shall the court entertain more than one application for a removal of a cause by the same party. party for clerk. § 11. The clerk shall be allowed ten cents a mile going Allowance to the and returning for traveling expenses in making the removal. verse party if § 12. the party upon whom notice has been served of an Allowance to adintended application for a change of venue shall be allowed application fails. five cents a mile going and returning, if he attended, and the applicant does not make or fails in his applicationwhich sum may be coerced by execution or attachment. Application for 13. At the appearance term of a civil suit, if a party when cause of desires a change of venue, he shall state the facts and rea- continuance. sons therefor in an affidavit, which shall be good cause for a continuance, if deemed sufficient by the court, provided the application for a change of venue be made during the term. § 14. When for any cause prescribed in section 1, article 7, chapter 29, title "Courts," it shall become necessary to select a special judge, and there shall be a failure to do so in some one of the modes provided for in that section, the (a) It a case pending in one court would stand regularly for trial at the next term thereof, it will in like manner stand for trial at the first term of the court to which it is removed by change of venue, provided the papers be filed in the clerk's office of that court ten days before the commencement of the term. (Dale vs. Hays, 14 B. M., 316.) 2. As to the power of a court over a case brought to it by change of venue, see Triplett vs. Scott, 5 Bush, 81. (6) The agreement of the parties is sufficient authority for the court to order a change of venue to a county different from the one to which it might have been compelled to send the case if no agreement had been made. (Salter vs. Salter, 6 Bush, 631.) 2. If an act of the Legislature provides for the transfer of pending actions from one court to another, it is of itself sufficient notice to litigants. (Shean vs. Cunningham, 6 Bush, 123.) (c) Objections to the jurisdiction of the court, acquired by a change of venue, are presumed to be waived after appearance and defense in that forum. (Vinsen vs. Lochart & Ireland, 7 Bush, 458.) &c., by whom verified. judge presiding shall transfer the action or prosecution to some county in an adjoining circuit most convenient to the parties. If the transfer be from a court of common pleas, or a chancery or criminal court, and there shall be no similar court held in the county to which the transfer is made, the circuit court shall have plenary jurisdiction to hear and determine the cause. (a) 15. If the party desiring a change of venue be an inPetition of infant, fant, the petition therefor may be sworn to by his or her statutory guardian, guardian ad litem, or next friend. If the party is a person of unsound mind, the petition may be sworn to by his or her committee or attorney. If the party desiring a change of venue is a non-resident of the State, the petition may be sworn to by his or her agent or attorney; and the petition so sworn to shall be as effectual as if sworn to by the party himself. Change of venue from an inferior court-how ob tained, to what court made, and the proceedings therein. ARTICLE II. Changes of Venue from County and Quarterly Courts. § 1. Changes of venue of any and all causes and motions pending in any county court within this Commonwealth, or in the court held by the county judge at his quarterly or monthly terms, shall and may be granted in the same manner, under the same limitations and restrictions, and for the same causes, as are prescribed in this chapter authorizing changes of venue in civil cases in the circuit court. The changes of venue shall be made to the circuit court of the county in which the cause or motion may be pending, unless there be a legal ground of objection to the judge of the circuit court, or to the trial of the cause or motion in that county, in which case the change of venue shall be awarded to the circuit court of the nearest county to which the objection does not apply; and the mode of trial and rules of procedure shall be the same prescribed for the trial of such causes or motions in the court from whence the same may be removed, so far as the same are applicable. § 2. When any change of venue shall be so ordered, the Original papers judge or clerk of the county court, as the case may be, shall send the original papers, together with a transcript of all to be sent. (a) Remanding a case to the circuit or county whence it came is no final order, and no appeal lies therefrom to the Court of Appeals. The cause must progress in the court to which it is remanded. The order of remand has no effect on the cause whatever. (Turner vs. Browder, 18 B. M., 827.) orders which have been made in the cause or motion, to the clerk of the court to which the change of venue is awarded; and upon disposing of the matter the court, according to the nature of the case, shall direct whether the original papers shall remain, or whether they shall be remanded to the court from whence they came. When they are remanded, the clerk of the circuit court shall retain a special statement of the taxation of costs, and return the original papers, with copies of all orders made in the premises by the circuit court, to the court from whence they came; and when any paper is so returned, which, according to the order or judgment of the circuit court, ought to be recorded in the county court office, it shall be so recorded by the county court clerk, together with so much of the order of the circuit court as shall be necessary to place the same properly on record. Proceedings had when cause re manded. ARTICLE III. Change of Venue from Justice's Courts. § 1. A party to a suit pending before a justice shall have change of venue to another justice, when he shall make oath that he believes he cannot have a fair trial in the justice's court in which the cause is pending, and the cause may be tried out of term time by the justice to whose court it is removed. 2. If the justice before whom a cause is returned for trial does not attend, or cannot try the same, any other justice of the same county may attend and try and decide the cause. ARTICLE IV. Change of Venue in Criminal and Penal Cases. cases-when and § 1. That when a criminal or penal prosecution is pend- Criminal & penal ing in any court, the judge thereof shall, upon the applica- how removed. tion of the defendant, order the trial to be had in some other adjacent county to which there is no valid objection, if it appears that the defendant cannot have a fair trial in the county where the proceeding is pending. 1. Such application must be made by petition in writing, S. A. 1860, 133. verified by the affidavit of the defendant; and the applicant How application must produce and file the affidavits of at least two other made. |