Moore agt. Gardner. Nor can I award any extra allowance. That can only be done by the court before which the trial was had or the judgment rendered (Rule 86). So too, the value upon which the per centage must be computed can only be ascertained by the court or jury before whom the action was tried (Code, § 309). If this was a proper case for an extra allowance, it could only have been granted at the circuit. The provision in regard to extra allowance is not applicable to a judgment on appeal (2 Coms. R. 570). The costs of the original action were adjusted by the clerk and became part of the judgment from which the appeal was taken. That judgment has been affirmed and it is now too late to add to or diminish the costs thus adjudged. This objection is applicable to both branches of this motion. Motion denied. SUPREME COURT. MOORE agt. Gardner. The venue in a complaint is to be fixed irrespective of convenience of witnesses, where some or one of the parties reside, if either reside in the state (Sections 125 and 126 of the Code, in connection with the 46th and 49th sections of the judiciary act). A change of the place of trial for the convenience of witnesses, is properly made, when the venue has been fixed in the proper county. Oneida Special Term, February 1851. J. P. HARRIS, moved to change the venue to the proper county under section 125 of the Code. H. GARDNER, for the plaintiff, read an affidavit, alleging that several of his witnesses lived in the county where the venue was laid. GRIDLEY, Justice.-The word "venue" is defined to mean "a neighboring place." "The place from whence a jury are to come for the trial of causes" (Jacobs's Law Dictionary vol. 6 p. 354). The word was used as synonymous with the place of trial, by all Moore agt. Gardner. legal writers both in England and in this state, up to 1847. It is true that when the venue was local, the court would sometimes grant an order for a trial in another county, for the reason that an impartial trial could not be had in the county where the venue properly belonged. But generally, a motion to change the venue, in transitory actions, is the phrase used when the place of trial is sought to be changed to another county for the convenience of parties and witnesses. (See Jacobs's Law Dictionary, title Venue, where a very full history of the subject is given; Tidd's Practice; Graham's Practice, 160, 164, 462, 466; 4 Hill's Rep. (in note), p. 62 to 70, and cases there cited; and 2 R. S. (2d ed.), 277 and 330.) There was no necessity for a practical distinction between the "venue" and the place of trial, under the old system of practice. The provision for the return of writs to the proper clerk's office, and the fact that the judgment record was made up by the attorney as a distinct paper, and filed in the proper office, rendered it immaterial in practice where the venue was laid, in actions of a transitory nature. But when the clerk of each county was made a clerk of the Supreme Court, and when the judgment record came to be composed of the pleadings and papers filed in the cause, to be annexed together by the clerk (as was formerly done by the Register in the enrollment of a decree in Chancery), it became necessary to designate some county as the county of the venue, where the papers were to be filed, and the judgment record made up. That was done by the judiciary act in section 46. This section declares that the venue shall be laid in the county in which some of the parties reside (if they reside in this state); and if the venue be not so laid, it shall be changed to the proper county with costs of the motion, if a notice shall be given of such motion before the expiration of the time for pleading. By the 49 section provision was made for a change of the place of trial for the convenience of witnesses; and provides that the clerk of the county where the trial is had, shall certify the minutes of the trial, to the clerk of the county where the venue is laid, &c.; and the proceedings shall continue as though the issue had been tried in the county where the venue was laid. Hinman agt. Bergen. Now, in this case, the plaintiff laid his venue in Onondaga, where neither party resided; the defendant living in Oneida county. The defendant demanded to have the venue changed, before the time for answering expired, pursuant to section 126 of the Code, which was refused. This motion is then made to have the venue laid in the proper county. This does not necessarily respect the question of the convenience of witnesses, but it fixes the county where the papers are to be filed and the judgment record made up and the costs adjusted, &c. pursuant to the third rule of this court, and the forty-ninth section of the judiciary act. On receiving the demand, the plaintiff should have changed the venue to the proper county, and then moved to change the place of trial for the convenience of witnesses; and this he may do still in the event this motion is granted. The sections 125 and 126 of the Code, taken in connection with the 46th and 49th sections of the judiciary act, show that the place named in the complaint, or in other words, the venue, is to be fixed, irrespective of convenience of witnesses, where some or one of the parties reside, if either resides in the state. The motion is granted with $10 costs. SUPREME COURT. HINMAN agt. BERGEN. 5 How. 245-Contra, 4 How. 246. 5 How. 245-Compare 2 Abb. 253; 15 Id. 10 Bosw. 697; 4 Duer 680; 6 How. 404; 9 Id. 33 Id. 89; 15 Id. 156; 17 1d. 469. The sum of $10," for every circuit at which the cause is necessarily on the calendar and not reached or is postponed" (§ 307, sub. 8), is not allowable to the prevailing party, where the cause was postponed at his request, and for his benefit. The plaintiff having recovered a verdict proceeded to have his costs adjusted by the clerk on notice. The defendant appeared and opposed the allowance of $10 for each of three circuits when the cause was regularly on the calendar, but postponed at the request, and for the accommodation of the plaintiff, by consent of the defendant. This appeared by the affidavit of the defendant's attorney, and also that the defendant Hinman agt. Bergen. was ready for trial at each of these circuits. This state of the facts was not denied by the plaintiff. The clerk allowed these items, and the defendant now makes his motion in the nature of an appeal, to have them stricken out. WM. M. ALLEN, for Plaintiff. JAS. L. CAMPBELL, for Defendant. MORSE, Justice. It is urged on the part of the plaintiff that section 307, sub. 8, which provides for the allowance of ten dol lars "for every circuit at which the cause is necessarily on the calendar and is not reached or is postponed," makes no exception on the ground that the postponement took place at the request and for the benefit of the party who seeks for the allowance. It seems to be supposed that this subdivision of section 307 is the only part of the statute which bears on the question as to these allowances. This is a mistake. The whole statute upon costs is to be taken together, and moreover is to receive a reasonable construction, which, that contended for by the plaintiff, is not. The statute of costs in civil actions, after repealing all former fee bills, and existing rules controlling the right of a party to agree with his attorney or counsel, as to the measure of their compensation, provides for the allowance to the prevailing party "certain sums by way of indemnity for his expenses in the action," which are " termed costs" (See § 303 of the Code). By section 307 these sums termed costs, are set forth, and the particular head of expense which each is to indemnify against, is specified. Thus the general language in section 303 is rendered specific. The sum specified for a particular stage of the action, or proceeding in the cause is by way of indemnity for the expense of that particular stage or proceeding. The proper reading of the latter clause of section 303 and sub. 8 of section 307 is together; the former specifying the end proposed and the latter the means of attaining that end. The plain rule laid down by the statute is that "ten dollars" shall "be allowed to the prevailing party by way of indemnity for his expenses for every circuit at which the cause is necessarily on the calendar, and not reached or is postponed." Darrow agt. Miller. These sums are to be allowed by way of indemnity for his expenses of the circuit, if allowed at all. To indemnify is to save harmless from loss or penalty. The plaintiff has suffered neither loss or penalty at the circuits from which he procured the trial to be postponed; so far from the postponement being to his loss it was to his benefit, and for his accommodation. If the defendant had insisted upon it he would have been entitled to receive these amounts; but he waived that. It would be inequitable; a discouragement to liberal and manly dealing among counsel; and contrary to the plain intention of the legislature to allow these items. Thirty dollars must be deducted from the bill of costs taxed by the clerk. 5 How. 247-FOLLOWED, 6 How. 21. SUPREME COURT. DARROW agt. Miller. To authorize an order upon a motion to strike out an answer as frivolous, it must appear that the answer is a "sham pleading" (Code, § 152), which does not necessarily follow from its being merely frivolous. An answer which is shown by its falsity or palpable frivolousness to be put in for delay merely, or other improper object, will be stricken out under 152, as a sham defence, in the same manner and for the like reason, that a plea embracing the same matter would have been stricken out under the former practice. No affidavit need be served on the opposite party with notice of motion for judgment under § 247. Where the notice of motion asked to strike out the answer on the ground of the frivolousness thereof "or for such other or further order as the said justice shall deem proper to grant," held, that judgment on account of the frivolousness of the answer, could not be given under § 247. The words "rule" or "order" in the Code, in no case mean a judgment. At Chambers, Dec. 27, 1850. The plaintiff's attorney gave the defendant's attorney notice that he would move this day at the office of the justice "for an order that the answer of the defendant to the complaint in this action be stricken out on the grounds of the frivolousness thereof with costs, or for such other or further order as the said justice shall deem proper to grant." The plaintiff's counsel now moves upon this notice and the com |