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Catherine N. Forrest agt. Edwin Forrest.

grant the writ in suits for alimony until a decree for alimony has passed, and I confess that if it had not been for the case of Denton vs Denton, and the action of Chancellor Kent, therein, I should for this reason have hesitated and perhaps altogether have refused the writ, but I did not feel myself at liberty to depart from or disregard a rule laid down by that eminent judge, cited with approbation by Judge Story (2 Eq. J. § 1472, n. 1), and acquiesced in and practiced upon in this state for a period of 35 years.

In determining the question whether this is a proper case in which the writ ought to be allowed, we are necessarily confined entirely to the case as stated on the part of the plaintiff, the defendant having with much propriety, confined himself within the limits necessary to raise the question of law involved in his motion.

Viewed in that aspect, this case is like that of Denton vs. Denton in every essential particular, save one. In that case the defendant had not only put his wife away from him but had abandoned her without home or support, and denied her all support. In this case the defendant has made ample provision for his wife and caused it to be punctually paid to her. No threat of his to withdraw that support has been set up. No avowal of an intention on his part to discontinue it has been alleged, but all rests on the fears of the plaintiff; on her suspicions that he may do so.

That he intends to leave the state is sufficiently avowed because he already asserts that his residence is in another state. But there is no reason given for apprehending that he will not return to it from time to time, and be finally within the jurisdiction of this court when its judgment shall be pronounced, and none for believing that he will attempt to remove his large property beyond the jurisdiction of the court, and there is, as I have said, nothing but the fears of the plaintiff that he may do otherwise.

This is not sufficient to warrant the granting of so high a provisional remedy. Facts must be set out on which the court can repose its belief, and those upon which the plaintiff relies and to

Northrop agt. Van Dusen,

which she points as the foundation of her belief, are not enough to work in our minds the same belief which obtains in hers.

For this reason, I think the writ of ne exeat was improvidently issued and the order of the special term discharging it ought to be affirmed.

SUPREME COURT.

NORTHROP agt. VAN DUSEN.

So much of a rule entered by default, upon motion, as grants costs to abide the

event of the suit, will be set aside for irregularity, if no notice of the application for costs is given in the notice of motion.

A notice of motion was served on the plaintiff in this case for a rule or order to change the place of trial from Albany to Montgomery county, “and for such other and further rule or order in the premises as the court may deem proper to grant;" but there was no notice of an intended application for costs of motion.

The defendant took the order for the change of the place of trial on the 27th of August, by default, and for ten dollars costs in favor of the defendant to be recovered by him in case he succeeded in the suit.

This motion was made to vacate so much of the order of August 27th, as awarded costs.

R. H. NORTHROP, Plff in Person.

F. Fish, for Defendant. PARKER, Justice.-Crippen vs. Ingersoll (10 Wend. R. 603), is decisive on the point that under a general clause in a notice asking for other and further relief, the party can not take costs of motion. The order of 27th August is therefore irregular, and so much of it as provides costs must be set aside.

The order did not give costs absolutely as in the case cited. It only provided what the law would have given without an entry

Hartman and others agt. Spencer.

in the order under the late practice, and what would have been allowed if asked for in the notice, whether the motion was granted or denied. For these reasons, considering the unsettled state of the practice and that this question is for the first time presented, I think no costs of this motion should be allowed.

5 How. 135-Contra, 4 How. 240,

SUPREME COURT.

HARTMAN AND OTHERS agt. SPENCER.

A motion to change the place of trial can not be made before the issues in the

cause are settled (SELDEN, Justice). Where a defendant moved to change the place of trial for the reason that a

large number of witnesses residing in the proposed county were required to prove a breach of the covenant of quiet possession set up in the answer; but no eviction being averred by the defendant; and it appearing moreover that he never had possession of the premises at all. Held, that under such cir. cumstances the covenantor could not be made liable (5 Hill, 599). Motion denied.

Seneca Special Term, October 1850. This is a motion on the part of the defendant to change the place of trial of this action from the county of Livingston to the county of Tompkins, on the ground that a great number of witnesses, material and necessary to sustain the defence, reside in Tompkins and the adjoining counties.

It was conceded upon the argument that the pleadings had not terminated, and that issue was not then joined in the cause; and the motion was opposed upon this ground, as well as upon the merits.

SELDEN, Justice.—Whether a motion to change the place of trial can be made before the issues in the cause are settled, is a question of much practical importance, and one upon which the decisions are conflicting.

It has recently received an elaborate examination by Justices WILLARD of the fourth, and Sill of the eighth district, who have come to opposite conclusions: the former having held in the case of Schenck vs. McKie, (4 How. Pr. R. 246), that the settled

Hartman and others agt. Spencer.

practice prior to the Code, which required motions to change the venue to be made before issue, was equally applicable to motions under the Code to change the place of trial; and the latter having decided at a general term, with the concurrence of his three associates in the eighth district, that the motion must under the provisions of the Code, be postponed until the issues are joined (Mixen vs. Kuhn, 4 How. 409).

This last case being the most recent, as well as the only one reported in which the question has been passed upon at a general term, I should for these reasons alone, be disposed to follow it. But the conflicting views entertained upon the question, and the fact that the practice is still unsettled, and differs in different districts, have induced me to look into the subject with some care for the purpose of satisfying my own mind as to its real merits; and while from this examination I am led to concur in the reasoning of Mr. Justice Sill, I also think that another line of argument may be pursued, which will serve to make the accuracy of his conclusion still more clear.

By the common law and the practice of the English courts there were two distinct and separate modes of obtaining a trial in a different county from that in which the venue was first laid. In transitory actions it might be accomplished by changing the venue, on motion, to the county in which a trial was desired; thus incidentally controlling the place of trial through the operation of the rule which required the venue to be issued, to the county where the venue was laid.

This practice was first introduced by the judges as a substitute for that of a traverse of the venue to be tried by a jury, in order to avoid the inconvenience and delay of the latter mode; and applied originally only to actions which were local, or which, although transitory by the common law, had been rendered quasi local by certain old English statutes.

It began, however, at an early day to be used for the purpose of securing a trial in actions purely transitory, in the county where the witnesses principally resided (Foster vs. Taylor, 1 Term R. 776; Watt vs. Daniel, 1 Bos. & Pul. 425).

Hartman and others agt. Spencer.

But in actions which were local the venue, if laid in the proper courty, could not be changed If, therefore, in such an action, it became necessary for any reason, as to obtain an impartial trial, that the place of trial should be changed, it was accomplished in a different mode; to wit, by a suggestion upon the record that a fair and impartial trial could not be had in the county where the venue was laid, with a nient dedire, as it was called; that is an order by default or nil dicit, that the venue issue to an adjoining county.

From the form of this entry it is obvious that it was first adopted in cases where it appeared from the record itself, either that justice required the place of trial to be changed, or where all the jurors within the visue, were interested, or that the venire must necessarily be awarded to another county, as where the venue was laid in Wales, to which the venire did not run.

But the same form was afterwards used where it was shown by evidence dehors the record, that it was necessary to send the case to another county in order to secure an impartial trial. The practice in such case was, on presenting the facts by affidavit to the court to obtain a rule to show cause why the party should not be at liberty to enter the usual suggestion with a nient dedire, upon the roll; and if sufficient cause was not shown the rule was made absolute and the suggestion entered (Rex vs. Harris 3. Burt. 1330).

These two modes of changing the place of trial were entirely distinct from each other. Lord Mansfield, in the case last cited, says:

“No two things can be more difficult than changing the venue and continuing it as it was, with such a suggestion upon the roll as is now proposed.”

The latter mode was applicable to actions whether transitory or local; while the former could only be used in those which were transitory; except where in a local action the venue was aid in a wrong county.

Motions to change the venue might always have been made before issue joined: and ultimately this came to be required, for

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