the cause tried in the next English county, it might be done by a suggestion upon the issue, as directed ante, Vol. I. 200(a). So it may be changed to a city; after which the party may on motion have a venire to the sheriff of the next adjoining county (b). In Michaelmas or Hilary term, however, the court will not, in general, change the venue to a county where there are no Spring assizes (c), unless with the consent of parties, or under special circumstances (d). CHAP. VI. what Cases on an Under How and in what Cases brought back on an Undertaking, How and in &c.] The plaintiff may bring back the venue to the county brought back in which he has already laid it. But by R. H., 2 W. 4, r. 103, "the venue shall not be brought back, except upon an under- taking, &c. taking of the plaintiff to give material evidence in the county in which the venue was originally laid"(e). The application in this case is to discharge the rule to change the venue, and is made as directed ante, 956, as to the latter rule (f). The application should, in strictness, be made before the venue has been altered in the issue under the rule to change the venue (g); yet the court have allowed it, even after the cause has been carried down to trial, and been made a remanet (h). In practice, however, it is usual to apply for this rule as soon as the rule to change the venue has been served. Sometimes the undertaking above mentioned may, as we shall presently shew, be dispensed with. &c. If the plaintiff fail in doing that which he has undertaken, what matenamely, to give material evidence at the trial of some matter rial Evidence, in issue arising in the county where the venue is laid, he shall be nonsuited (i), if the objection be taken at Nisi Prius (k). But it will be sufficient to prove any fact material to the cause that took place in the county, though it do not go to the entire cause of action(); for instance, that the deed upon which the action is founded was enrolled within the county (m); or, in an action by the assignees of a bankrupt, to prove that the fiat of bankruptcy issued, and the bankruptcy was declared, in the county (n); or to prove that letters containing the promise on which the action is founded were put into the post-office in the county (o); or in an action for goods sold and delivered, to prove letters containing invoices of goods having been put into the post-office in the county at the time the goods were forwarded (p); or delivery of the goods in the county to a carrier for the defendant (q); or to prove, in an action for an escape, the issuing of the writ (a) See Freeman v. Gwynn, 2 W. BL. 962. (b) Bird v. Morse, 7 Taunt. 385. (c) See Moor v. Fearnhaugh, 1 Wils. 138; 2 Str. 1258, S. C.: Howarth v. Willett, 2 Str. 1180. (d) See Fenwick v. Farrow, 1 Chit. Rep. 334; Id. 14: Howarth v. Willett, 2 Str. 1180. (e) See Wood v. Perkes, 2 B. & Ald. 618: Powell v. Rich, 7 Taunt. 178; 2 Marsh, 494, S. C., semb. cont.: and see Hill v. Payne, 3 Dowl. 695. See form of rule, Chit. Forms, 570. (g) 1 Cromp. 114. (h) Bruckshaw v. Hopkins, 1 Cowp. 409: see Dickinson v. Fisher, 2 Str. 858; Price, Notes, P. Pr. 177. (i) Santler v. Heard, 2 W. Bl. 1031: see Watkins v. Towers, 2 T. R. 281; where production of a rule to pay money into (k) How v. Pickard, 2 M. & W. 373; (1) See Anon., 2 Chit. Rep. 418; and the (n) Kensington v. Chantler, 2 Moo. & Sc. (0) Smith v. Walker, 8 Taunt. 169; 2 (p) Linley v. Bates, 2 C. & J. 659. BOOK IV. To what Time the Undertaking refers. When discharged without an Undertaking. on which the party was taken (r); or in an action on the warranty of a horse, that plaintiff's attorney wrote defendant a letter in the county, apprising him of the breach of warranty, and that the horse was standing at livery at the defendant's expense, coupled with an admission of the receipt of the letter in the county (s); or in an action against coach proprietors for negligence and injuring plaintiff, to prove that expense of medical attendance, &c., was incurred in the county (t); or, it seems, anything tending to increase the damages (u); or, perhaps, to prove that the cause of action arose abroad (x). It has been considered that the undertaking in the Common Pleas must be understood to have reference only to the evidence necessary to support the declaration, or any one material averment in it; and therefore, if the defendant confess and avoid the whole cause of action, or plead a tender to the whole declaration, the plaintiff will not be bound to produce at the trial the material evidence he undertook to give (y). But the undertaking in the Queen's Bench is different from that in the Common Pleas, and it must, it seems, have reference to the evidence necessary to support the issue joined between the parties, whatever it may be (*). When brought back and Rule discharged without an Underbrought back taking.] The court or a judge will, under special circumstances, discharge the rule to change the venue, without the undertaking above mentioned. Thus, when a fair and impartial trial cannot be had in the county to which it has been changed (a), or where the plaintiff would otherwise fail in the action (b), or if the cause of action arose in part in a foreign country, or in Ireland or Scotland (c), or if the venue ought not to have been originally changed (d), as where the action was on a bill of exchange (e), or the rule obtained after an order for time on the terms of taking short notice of trial (ƒ), or if the affidavit upon which the venue was changed be defective (g), or the like, the court or a judge will discharge the rule to change the venue, without any undertaking. In other cases, however, such undertaking will not be dispensed with, even although it be shewn that the affidavit upon which the venue was changed is false (h). Where a rule for changing the venue has been obtained on the common affidavit, in a case in which the venue can only be changed on special grounds, and a rule is, obtained for bringing back the venue, it will be no answer to the latter rule (r) Neale v. Nevill, 6 Taunt. 565. 169. (u) See Collins v. Jenkins, 4 Bing. N. C. 225. (x) Gerrard v. De Roebeck, 1 H. Bl. 280: (y) Cockerell v. Chamberlayne, 1 Taunt. 250. (a) Petyt v. Berkeley, 1 Cowp. 510: Doe Hurdman v. Pilkington, 4 Burr. 2447. (b) Amner v. Cattell 5 Bing. 203; 2 Moo. & P. 367, S. C. (c) Hope v Bennett, 2 N. R. 397: McClure v. M'Keand, 2 Taunt. 197. (d) Clementson v. Newcombe, 3 Dowl 435: Dawson v. Bowman, 3 Dowl. 160: Hobart v. Wilkins, 1 Dowl. 461. (e) Dawson v. Bowman, 3 Dowl 160. (f) Petyt v. Berkeley, Cowp. 510. (g) Tidd, 610: Allen v. Griffiths, 3 T. R. 495. (h) Price v. Woodburne, 6 East. 433: Hunt v. Bridgeford, 1 Taunt. 259: Dick v. Norrish, 3 Id. 464: Powell v. Rich, 7 ld. 178: Wood v. Perkes, 2 B. & Ald. 618: but see Cailland v. Champion, 7 T. R. 205. to shew that there are special grounds for keeping the venue at the place to which it has been changed; but those grounds must be made the subject of an independent motion for changing the venue in the first instance (i). CHAP. VI. Plaintiff. In what Cases changed by Plaintiff.] In transitory actions, In what Cases the plaintiff may lay his venue where he will; but if from changed by circumstances he should afterwards desire to change it, he may obtain leave to amend his declaration, by altering the venue (j) upon stating to the court or judge a reasonable ground for the application (k); and this even after plea pleaded and issue joined (1), or even after the venue has been changed on the usual affidavit (m), or after a nonsuit on the trial, where it had been changed by plaintiff (n). In local actions we have seen (ante, Vol. I. 200) that the court or a judge may allow the trial or inquiry to take place in another county than that in which the venue is laid. And the court allowed a suggestion to be entered for this purpose in an action of trespass quare clausum fregit, where it was sworn that the defendant and others riotously and tumultuously assembled, and broke down the fences &c., without imposing any terms upon the plaintiff (0). (i) Dawson v. Bowman, 3 Dowl. 160. ) Stroud v. Tilly, 2 Str. 1162: Petre v. Craft, 4 East, 433: Dover v. Mestaer, Id. 435. (k) Ayres v. Buston, 6 Taunt. 408. As to what are reasonable grounds, see ante, 962, 963. (1) Cook v. Shone, Barnes, 12: but see (m) Rivet v. Cholmondley, 2 Str. 1202. P VOL. II. BOOK IV. Striking out unnecessary Counts. Superfluous Indecent or scandalous Matter. Reference to Master. CHAPTER VII. STRIKING OUT COUNTS, PLEAS, UNNECESSARY AVERMENTS, &c. IF the declaration contain any unnecessary count, in violation of the rules which prohibit the use of several counts, the defendant may obtain a judge's order for striking it out at the plaintiff's cost, unless the plaintiff satisfies the judge that some distinct subject-matter of complaint is bonâ fide intended to be established in respect of such count; in which case the judge will specify on the summons, or order, as the case may be, the counts on which the plaintiff has satisfied him that a distinct subject-matter of complaint is proposed to be established; and if it should afterwards appear at the trial, and be certified by the presiding judge before final judgment, that no such distinct matter of complaint was bonâ fide intended to be established in respect of the count so allowed, the plaintiff will recover no costs upon any issue arising out of the count with respect to which the judge so certifies (a). These rules, and the proceedings to be taken under them, will be found fully noticed in the first Volume, p. 147-150. The superfluity of the counts may generally be collected from the particulars of demand, if any delivered; and such particulars should, in general, be obtained before making the application. If any part of a count be superfluous, such as unnecessary recitals, statements of venue (b), statements of title, descriptions of property, or the like, if the superfluous matter be of any length, the court or a judge, upon application, will in like manner order it to be struck out (c), and generally so at the plaintiff's cost. In an action against forty-six defendants, the court ordered the word "defendants" to be substituted for the names of the several defendants in the declaration, in all the places where they occurred, excepting the first (d). So, if a declaration unnecessarily contain indecent or scandalous language, the court or a judge, upon application, will refer it to one of the masters, and direct them, if he report against it, to tax exemplary costs (e). The rule or order granted in these two latter cases is, either that the declaration be referred to one of the masters, (upon whose report the court will afterwards decide), or a rule upon the plaintiff to shew cause why the superfluous matter should not be struck out. It is seldom referred to the master, unless in the case of scandal and impertinence, or where the superfluous matter is so mixed up in the declara (a) R. H., 4 W. 4, r. 5, 6, 7, ante, Vol. I. 147-150: see Tidd, 9th ed., 616: Bagley's Pract. 257. (b) Fisher v. Snow, 3 Dowl. 27: Harper v. Champneys, 2 Dowl. 680: Townsend v. Gurney, 3 Dowl. 168. (c) 1 Sellon, 239: Tidd, 9th ed. 617: Dundas v. Lord Weymouth, Cowp. 665: Price v. Fletcher, Id. 727. (d) Meeke v. Oxlade, 1 N. R. 289: see Carmack v. Gundry, 3 B. & Ald. 272. (e) Anon., 2 Wils. 20: Imp. B. Ř. 224. tion as not to be easily separated and distinguished, or pointed CHAP. VII. out with distinctness to the attention of the court (ƒ). The motion or application to strike out superfluous counts At what Time or matter should, unless some point of law be involved in applied for. it so as to warrant an application to the court (g), be made in the first instance to a judge at chambers (h). The application, if made to the court, must be founded on an affidavit, that they are for the same identical causes of complaint, or else the rule must be drawn up on reading the declaration (i). As to the time of the application, it should be made before plea pleaded; and from a case decided before the rules of H. T., 4 W. 4, it appears that it ought to be made before the defendant has obtained time to plead (k); and, at all events, before the superfluous counts or matter are engrossed on the record (1). It is now, however, the practice to grant it, though made after time to plead granted. The application, if granted, will be with costs (m). 1831. We have seen (ante, Vol. I. 146) that there are prescribed Forms given (by R. T. 1831) forms given as examples of declarations in R. T. actions on bills of exchange, notes, and on the common counts, and that they must not exceed the prescribed length, otherwise no costs of the excess will be allowed to the plaintiff if he succeed, and the costs of the excess incurred by the defendant will be taxed and allowed him, and be deducted from the plaintiff's costs; and, on the taxation of costs between attorney and client, no costs will be allowed the attorney in respect of such excess; and in case any costs be payable by plaintiff to defendant on account of such excess, the amount thereof will be deducted from the attorney's bill. The rules above noticed (ante, 964) as to restraining the use Striking out of and striking out superfluous counts in a declaration, are also unnecessary applicable to several pleas, avowries, or cognizances, which will not be allowed, and may, on application, be struck out, unless a distinct ground of answer or defence is intended to be established in respect of each, and as to which, see ante, Vol. I. 150. Pleas, &c. frivolous Pleas Sometimes the court or a judge will order an improper plea Improper or to be struck out. (See ante, Vol. I. 167). If a plea be clearly frivolous, and put in for the mere purpose of delaying and harassing the plaintiff, the court or a judge will strike it out with costs, and allow the plaintiff to sign judgment (n). But they will not do this except in a plain case (o). (f) Bagley v. Watkins, 1 Chit. Rep. 450. (2) See per Alderson, B., 4 Dowl. 223. (h) Ward v. Graystock, 4 Dowl. 717. (i) Roy v. Bristow, 2 M. & W. 241; 5 Dowl. 452; Murph. & Hur. 139. (k) Wilkins v. Perry, Hardw, 129: see Law v. Williamson, Imp. C. P., 6th ed., 170. (1) Thomas v. Jackson, 2 Bing. 453; 10 Moore, 152, S. C. (m) Lawrence v. Stephens, 3 Dowl. 777. (n) Knowles v. Burward, 2 Per. & D. 235: Horner v. Keppel, 2 Per. & D. 234: Bradbury v. Evans, Exch., 25th Nov. 1839. (0) Horner v. Keppel, 2 Per. & D. 234. |