CHAPTER VI. BOOK IV. CHANGE OF VENUE. IT should be premised that the court will, in some cases, noticed ante, Vol. I. 200, 201, order the issue or inquiry to be tried or executed in another county than that in which the venue is laid, but this practice is distinct from that of changing the venue. How and in what Cases by De fendant, 956. Into what Counties, 960. When brought back, and Rule discharged without an Undertaking, 962. In what Cases changed by Plaintiff, 963. How and in what Cases by Defendant. mon Affidavit. 66 How and in what Cases by Defendant.] LOCAL actions must be brought in the county in which the cause of action arose; transitory actions, in any county, at the option of the plaintiff. On the com- But if the plaintiff bring a transitory action in any other county than that in which the cause of action arose, the defendant upon application to the court or a judge founded upon an affidavit, "that the plaintiff's cause of action (if any) arose in the county of B., and not in the county of A.," (where the action is brought), or elsewhere out of the said county of B.," can have the venue changed to the county where the cause of action really arose (a). The affidavit must expressly state that the action did not arise in the county in which the venue is laid, and that it did arise in the county to which the venue is sought to be changed, and not elsewhere, otherwise it will be insufficient (b). It may, it seems, be made either by the defendant or his attorney, though, as this does not appear expressly settled, it is safest to comply with the usual practice of having it sworn to by the defendant himself (c). In term, the rule to change the venue may be obtained from one of the masters, who, upon producing the above affidavit and the declaration, and a motion paper signed by counsel, will draw up the rule, which is absolute in the first instance (d). Draw up the rule with one of the masters, and serve a copy of it on the plaintiff's attorney or agent, who will thereupon alter the decla (a) See 1 Saund. 73, 74, n.: Jones v. Pearce, 2 Dowl. 54: Tidd, 9th ed. 609. See form of affidavit, Chit. Forms, 570. (b) Jones v. Pearce, 2 Dowl. 54: Palmer v. Terry, 2 Dow), 566: Allen v. Griffiths, 3 T. R. 495: Walker v. Wright, 4 East, 495. (c) Biddell v. Smith. 2 Dowl. 219: see King v. Turner, 1 Chit. Rep. 58, 161. (d) R. H., 2 W. 4, r. 103. By that rule, "In cases where the application for a rule to change the venue is made upon the usual affidavit only, the rule shall be absolute in the first instance." The rule of T. T., 49 G. 3, (11 East, 273; 1 Chit. Rep. 691), requires that all rules for changing the venue shall be drawn up "on reading the declaration." ration. In vacation you may obtain a judge's order to the same effect, which is granted, as of course, without summons, upon the production of the affidavit and declaration. The judge's order is taken with the affidavit, aud a motion paper signed by counsel, to one of the masters, who will thereupon draw up the rule. The rule may be served at the same time as the plea (e). CHAP. VI. This application cannot be made before the defendant has At what Time appeared (f). It may now, it seems, be made any time after applied for. declaration, and before the defendant has pleaded (g); but not after plea, (even a plea in abatement (h)), pleaded, unless under special circumstances (post, 958). It may be made after time has been obtained to plead, though upon terms of pleading issuably (), unless expressly provided against by the order, or unless the order be upon the terms of taking short notice of trial (k), or upon "the usual terms" (7), whether or not the trial would be lost by the changing (m). If it is intended, therefore, to apply to change the venue, or if it is apprehended that such a course may be desirable, the defendant's attorney should introduce into the order for him the words "without prejudice to any application to change the venue; or, if the plaintiff will not be materially delayed by changing the venue, the court or a judge may direct that the order for time should be amended in that respect (n). The court have refused to change the venue from London into a northern county in Hilary term, on the motion of the defendant, without an affidavit of merits (o). The motion cannot be made by defendant after a new trial granted (p). Also, where one defendant has allowed judgment to go by default, it may be doubtful if the court or judge would change the venue at the instance of the other defendant who had pleaded; for it might be imposing a hardship upon the former, to have damages assessed by a jury of a different county, without his assent (7). tion arose in If the cause of action be such, that the above affidavit (riz. Where the that the cause of action, if any, arose in the county into which Cause of Acthe defendant proposes to change the venue, and not else- several Counwhere) cannot be made, the court or judge will not order ties. the venue to be changed, unless under very particular circumstances, or by the consent of parties. Therefore, if the cause of action have arisen in two counties, as in an action for a libel (e) Phillips v. Chapman, 5 Dowl. 250, Dearden, M'Clel, & Y. 106. Q. B. (f) Impey, K. B., 271. (g) Smith v. Walker, 8 Taunt. 169; 2 Moore, 64, S. C.: Wigley v. Dubbins, 4 Bing. 384; 12 Moore, 91, S. C.: see Moses v. Stevenson, 1 Taunt. 58; 3 B. & P. 13: see the former cases and law, Asplin v. Gray, 1 Str. 211: R. M. 1654, s. 5: Wood v. Winch, Barnes, 480: Thomeur v. Rand, Id. 486: Hayward v. Wells, Id. 489. (h) Wigley v. Dubbins, 12 Moore, 91; 4 Bing. 34, S. C. (iRowley v. Allen, Willes, 318: Wilson v. Harris, 2 B. & P. 320: Petyt v. Berkeley, Cowp. 511. (k) Shipley v. Cooper, 7 T. R. 698: Nun v. Taylor, 1 Bing. 186: 7 Moore, 598, S.C.: Gitton v. Randell, 1 M. & R. 142: Waring V. Holt, 3 Price, 3. (1) Russell v. Hurst, 1 C. & M. 184: Waring v. Holt, 3 Price, 3: Brettargh v. (m) Notts v. Curtis, 1 Dowl. 319; 2 C. & J. 345, S. C.: Tonks v. Fisher, 2 Dowl. 22: Shipley v. Cooper, 7 T. R. 698: Petyt v. Berkeley, Cowp. 511: and see Ford v. Gainer, Sayer, 207: Nun v. Taylor, 1 Bing. 186; 7 Moore, 598, S. C. (n) Notts v. Curtis, 2 C. & J. 345; 1 (0) Walton v. Hutton, 1 Chit. Rep. 14. (4) See Eccles v. Holland, 4 Moo. & Sc. BOOK IV. PART I. In what Actions on the common Affidavit. published in two or more counties (r), or written in one and published in another county (s), the court or judge will not change the venue (t); but where the libel was written and published in one county (u), or written here and published in Germany (x), the venue was allowed to be changed to the county where the libel was written. In an action for criminal conversation, the court have allowed the venue to be changed, upon the usual affidavit (y); so in an action for an assault (2), or for negligence in driving, &c. (a). But in an action on the case for running down a ship, it has been held that the venue cannot be changed, unless some special ground be alleged (b). So the venue may be changed in all actions upon contracts not under seal (c), with the exception of actions on bills of exchange and promissory notes, to which the idea of locality cannot attach (d); and also, except in an action on a charter-party, or policy of insurance (e), or other instrument, though not under seal (ƒ), if the declaration be special on the written instrument, and the instrument be not merely incidental to the action, as an I. O. U., or the like (g). If the declaration contain one count on a cause of action, in respect of which the venue cannot be changed, the insertion of other counts on causes of action, in which the venue can be changed, will make no difference (h). It cannot be changed in debt for rent (i), or in an action on an award (k), or on a specialty (7), or in covenant (m). Yet, in covenant, where a view was necessary, the court allowed the venue to be changed to the county in which the premises were situate (n), though, in another case, it was refused (o). And in other cases, on specialties or written instruments, under special circumstances, the court will change the venue after issue joined, but not in general before (p). There are some other cases, also, in which the court or judge will not allow the venue to be changed, unless upon special grounds; as in actions for scandalum magnatum (q), actions against car (t) See 2 Saund. 5 e: Neale v. Neville (u) Freeman v. Norris, 3 T. R. 306. (c) Kirke v. Broad, Say. 7: Howarth v. (d) Parmeter v. Otway, 3 Dowl. 66: Walthew v. Syers, Id, 160: Pinkney v. Collins, 1 T. R. 571: Evans v. Weaver, 1 B. & B. 20: Shepherd v. Green, 5 Taunt. 576; Smith v. Elkins, 1 Dowl. 426. (e) Smith v. Stansfield, 1 M'Clel. & Y. (f) Morrice v. Hurry, 7 Taunt. 306. 12 Moore, 161, S. C.: Slade v. Trew, 2 Dowl. 65; 1 C. & M. 584, S. C.: Roberts v. Wright, 1 Tyr. 532. (h) Parmeter v. Otway, 3 Dowl. 66: Walthew v. Syers, Id. 160; 1 C., M. & R. 596, S. C.: Dawson v. Bowman, 3 Dowl. 160; 1 C., M. & R. 594, S. C.: Hart v. Taylor, 2 D. & R. 164: Arden v. Mornington, 4 Tyr. 56. (i) Duplessis v. Chalk, 2 Str. 878. (k) Whitburn v. Staines, 2 B. & P. 355: Stanway v. Hislop, 4 D. & R. 635; 3 B. & C. 9, S C. (1) Foster v. Taylor, 1 T. R. 781: Watt v. Daniel, 1 B. & P. 425: Youde v. Youde, 4 Dowl. 32; 3 Ad. & EL 311, S. C.. and see Anon., 1 Sid. 87. (m) Bohrs or Maude v. Sessions, 1 C., M. & R. 86; 2 Dowl. 699, S. C.; see Weatherby v. Goring, 3 B. & C. 552; 5 D. & R. 441, S. C. (n) Hodinott v. Cor, 8 East, 268, (p) Bohrs or Maude v. Sessions, 1 C., M. & R. 86: Cockerill v. Dizon, 1 C. & M. 661: Parmeter v. Otway, 3 Dowl. 66: Youde v. Youde, 4 Dowl. 32: 3 Ad. & EL 311, S. C. See cases referred to in notes, infra. (q) 2 Ld. Raym. 1418: Duke of Norfolk v. Alderton, 2 Salk.668: Lady Falconbridge v. Forrest, 2 Str. 807, riers (r), actions for the infringement of a patent (s), and CHAP. VI. actions for escapes, or false returns (t). Venue. Serjeants-at-law, barristers, attornies, and officers of the Persons privicourt, have the privilege of laying their venue in Middle-leged as to sex (u); and the court or judge will not allow the defendant to change it, upon the usual affidavit (); provided they sue in their own right (x), and not jointly with others (y). But if they lay the venue in any other county, they have no privilege as to retaining it (z). And a plaintiff, who becomes a barrister, during the action, cannot bring back the venue, though originally laid in Middlesex (a). And if an attorney sue by attorney, he thereby waives his privilege as to venue (b). And none of the above persons can, as defendants, have the venue changed to Middlesex without the usual affidavit (c). Where a transitory action is brought in the county in Change of which the cause of action arose, or in the other cases already cial Grounds. Venue on spementioned, in which the venue cannot be changed upon the common affidavit, or in which, although it might have been so changed, yet the application has not been made in proper time, &c., the court will never change the venue, unless it is very evident, that from political excitement, or other causes, a fair and impartial trial cannot be had in the county where it is already laid (d); or, unless the witnesses on both sides live at a great distance from the place where the venue is laid, or unless the expense of trying the cause in the county where the venue is laid very greatly preponderates (e); or where a view is desirable for the furtherance of justice (f); or under other very special circumstances (g), as, for instance, where, in a country cause, the cause was not tried for defect of jurors, and the defendant was rendered by his bail, so that he would have been detained in prison till the following assizes, had not the venue been changed to Middlesex (h); or with the consent of parties (i). The mere circumstance of there being only twentynine special jurors in a county, is no ground for changing the venue (4). In these cases, it is not, it seems, in general, any answer to the application, that the defendant has given an (r) Heathcoat's case, 2 Salk. 670. (*) Brunton v. White, 7 D. & R. 103: Amun., 2 Chit. Rep. 418; 6 T. R. 363. (t) Anon., 2 Salk. 669, 670, (u) Notwithstanding the 2 W. 4, c. 39, this privilege still exists, (ante, 846), but he must sue in person, as an attorney. (Lowless v. Timms, 3 Dowl. 707). (e) Pope v. Redfearne, 4 Burr. 2027; 2 Snow, 242, 176: Burroughs v. Willis, 2 Str. 822: Knight v. Barnaby, 2 Ld. Raym. 1253; 2 Salk. 670, S. C.: Pye v. Leigh, 2 W. Bl. 1065: Downes v. Brian, Id. 993. (a) See Newton v. Rowland, 1 Salk. 2. (y) See ante, 846: Newton & Wife v. Harland, 6 Dowl. 630. (2) Lewis v. Shelley, 7 Taunt. 146. (a) Newton v Harland, 6 Dowl. 630. (b) Lawless v. Timms, 3 Dowl. 707. (e) Yearaley v. Roe, 3 T. R. 573: Pope v. Redfearne, 4 Burr. 2028: and see Lewis v. Shelley, 7 Taunt. 146: ante, 847. (d) See Mayor of Poole v. Bennet, 2 Stra. 874: Petyt v. Berkeley, Cowp. 510: Rex v. Harris, 3 Burr. 1333: Mylocke v. Saladine, Id. 1564: Mayor &c. of Bristol v. Proctor, 1 Wils. 298: Hill v. Payne, 3 Dowl. 695: Thornton v. Jennings, 5 Bing. N. C. 485; 7 Dowl. 449, S. C.: Morris v. The Duke of Norfolk, Exch., 22nd November, 1839. (e) Alcock v. Cook, 6 Bing. 733; 4 Moo. & P. 573, S. C.: Johnson v. Nevison, 2 Dowl. 260: and see Foster v. Taylor, 1 T. R. 781: Evans v. Weaver, 1 B. & P. 20: Anon., 2 Chit. Rep. 418: Ladbury v. Richards, 7 Moore, 82: Fenwick v. Farrow, 1 Chit. Rep. 334: Crompton v. Stewart, 1 Dowl. 567; 2 C. & J. 473, S. C.; 10 Price, 171. (f) Hodinott v. Cor, 8 East, 268. (g) See Foster v. Taylor, 1 T. R. 782: (h) Keys v. Smith, 10 Bing. 1; 3 M. & 205. PART I. BOOK IV. undertaking to try at the sittings (7). The affidavit to change the venue, under special circumstances, should state the nature of the cause of action, and of the defence thereto, and the grounds for the motion or application (m). And if the ground on which the venue is sought to be changed be, that the witnesses reside at a great distance from the place where the venue is laid, the affidavit should also state, that the defendant intends to examine witnesses (n), the number of those witnesses (o), and where they reside. The application should also, as a general rule, be made after issue joined, and not before (p). Where, however, the pleadings and facts of the case were such, that the court could not fail to see what the issues joined must be, and the only matter in dispute was as to costs, a change of venue was allowed before issue joined (q). The court, in granting the application, will, in general, impose on the applicant such terms, as to payment of costs or expenses (), admissions (s), and other matters (t), as they consider just to the opposite party. In local Actions. Rule not a Stay of Proceedings. Into what We have seen (ante, Vol. I. 200) that by the 3 & 4 W. 4, c. 42, s. 22, the venue may be changed even in local actions where it is more convenient that the trial should take place in another county. The application to change the venue in this case cannot be made till after issue joined (u). In local actions, when an impartial trial cannot be had in the county where the action is brought, instead of moving to change the venue, it is more usual to apply for leave to enter a suggestion upon the issue, in order to have a trial in the adjoining county, as directed ante, Vol. I. 201. A rule or order to change the venue does not, in general, operate as a stay of proceedings, and the parties are bound to take the next step as if no such order had been made (x). Into what Counties.] When the venue is changed upon the common affidavit, it is always changed to the county in which the cause of action arose; when changed because a fair and impartial trial cannot be had in the county in which it is laid, it is usually changed to the next adjoining county; when changed for any other special cause, it is changed into such county as the circumstances of the case suggest. It may be changed to Chester (y), Durham, or Lancaster, and the record sent down by mittimus into the latter counties. The venue might, even before the 11 G. 4 & 1 W. 4, c. 70, be changed to a Welsh county (≈); and if it be desired afterwards to have (7) Johnson v. Nevison, 2 Dowl. 260: sed vide Haythorn v. Birch, 2 Id. 240. (m) Ladbury v. Richards, 7 Moore, 82: see Johnson v. Beresford, 2 C. & M. 222. See a form, Chit. Forms, 554, 576. (n) Crompton v. Stewart, 1 Dowl. 567; (0) Evans v. Weaver, 1 B. & P. 20. (q) Dowler v. Collis, 4 M. & W. 531; 7 Dowl. 56, S. C.: but not so clear as to the point in the text. (r) See Bowring v. Bignold, 1 Dowl 685, per cur. (8) See Holmes v. Wainwright, 3 East, 329. (t) See Bowring v. Bignoid, 1 Dowl 685, 1er curiam : Evans v. Weaver, 1 B. & P. 20 (u) Bell v. Harrison, 2 C., M. & R. 733; 4 Dowl. 181, S. C. (r) See post, 1045. (y) Godfrey v. Philpot, 2 Ld. Raym, 1418: Price v. Griffith, 1 Wils. 222; which cases were decided before the 1 W. 4, c. 70. (2) Hopkins v. Lloyd, 6 East, 355. |