3. Q. Should a majority of witnesses, sworn to by either party as necessary, necessarily control the place of trial?

A. In Jordan agt. Garrison, 6 How., 7, Special Term, March, 1851, HARRIS, J., it was decided, that the place of trial of a transitory action should be in the county where the principal transactions between the parties occurred, and where it appears the largest number of the witnesses who know anything of the facts reside. A majority of witnesses should not necessarily control.

4. Q. Is an action by the wife for a limited divorce to be tried in the county where she actually resides, without regard to the maxim that the domicil of the wife follows that of the husband?

A. In Vence agt. Vence, 15 How., 497, Special Term, February, 1858, MASON, J., it was decided, that this common law maxim, that the domicil of the wife follows that of the husband, only applies where the ordinary relation of husband and wife exists in union and harmony. It is founded upon the theoretic identity of person and of interest, as established by law, and the presumption that from the nature of that relation the home of the one is that of the other; but when, in fact, the relation of the identity of home has been severed by the misconduct of the husband, and no longer as matter of fact exists, but the relations of the parties, on the contrary, have become hostile, then it seems there is no longer unity of domicil, and the maxim of unity of domicil no longer prevails. It has no application in actions for a divorce, where separation has actually taken place, and where the very proceedings in the action are to show that the relation or husband and wife should be dissolved, or so far modified as to establish separate interests, and especially of bed and board, and of domicil and home; in such a case, the law will recognize the wife as having a separate existence and separate rights. Therefore, in an action for a limited divorce, a mensa et thoro, for cruel and inhuman treatment, the plaintiff may properly lay the venue in the county where she actually resides at the commencement of the action, although the domicil of the defendant (where both parties formerly resided, and where the defendant actually resides) is in another county. (Affirmed General Term, May, 1858, GRAY, MASON, BALCOM and CAMPBELL, J. Js., 15 How., 576.)

5. Q. In an action by the people in the nature of a quo warranto, can the place of trial be properly laid in any county in the state?

A. In The People of the State of New York agt. Cook, 6 How., 448, Special Term, February, 1852, SELDEN, J., it was decided, that in an action in the nature of a quo warranto, the place of trial may be properly laid in any county in the state. The people are a party, whose residence extends to every county.

6. Q. Is a railroad company to be treated as an inhabitant of each county where its track is laid, so that it may be sued before a justice of the peace in either county?

A. In Johnson agt. The Cayuga and Susquehanna Railroad, Company, 11 Barb., 621, General Term, May, 1852, SHANKLAND, J., it was decided, that the constitution of 1846 provides that corporations may be sued in like cases as natural persous, before justices of the peace.

In Sherwood agt. Saratoga and Washington Railroad Company, 15 Barb., 650, General Term, July, 1852, WILLARD, J., it was decided, that a railroad company must be treated as an inhabitant in each county where its track is laid It may, therefore, be sued before a justice of the peace in either of such counties, provided the process can be served on the proper officer in such county.

In Belden agt. The New York & Harlem Railroad Company, 15 How.. 17, General Term, April, 1857, BIRDSEYE, J., it was decided, that railroad companies are to be treated as inhabitants and freeholders in each county where their track is laid, and are consequently entitled to the same privileges when sued as inhabitants and freeholders.

In The People ex rel. The Hudson River R. R. Company, agt. Pierce and others, 31 Barb., 138, General Term, Feb., 1860, EMOTT, J., it was decided, that whether a railroad company or corporation is to be considered as resident for purposes of taxation or otherwise, in each county through which its road runs, or only in the city where its principal business office is situated-quere? But the act of 1837, in relation to the assessment of highway labor, intended these corporations should be included among, and treated as inhabitants, for all its purposes.

7. Q. Are insurance companies and other corporations created under the laws of this state to be considered as residents of the county where their office is located and their general. business carried on, so as to demand a trial in such county?

A. In Conroe and others agt. The National Protection Insurance Company, 10 How., 403, Special Term, February, 1855, BOCKES, J., it was decided, that insurance companies, and other corporations, created under the laws of this state, are residents of the county where the office of the company is located, and its general business carried on; and where the plaintiffs are non-residents, such corporation defendant is entitled to have the

action tried in the county where the corporation is located. And if the proper county is not designated in the complaint, the court, on application will change the place of trial. In Hubbard and Cutler agt. The National Protection Insurance Company, 11 How., 149, Special Term, March, 1855, BoWEN, J., it was decided, that the residence of a corpo-. ration created by the laws of this state, is in the country where its general business is transacted and located. The fact that such a corporation has an office in another county, where some of their business is done, does not change or affect their residence.

In Pond agt. The Hudson River Railroad Company, 17 How., 543, Special Term, October, 1858, HARRIS, J., it was decided, that the place of residence of a corporation, created by the laws of this state, must be ascertained by its place of business. If it have several places of business, it must also be deemed to have several places of residence. Thus, where the principal business of the defendants-Hudson River Railroad Company-was transacted in New York, and yet they had a place of business in Albany, held, that such fact constituted them, for the purpose of venue, residents of Albany,

In The International Life Assurance Company agt. Sweetland, 14 Abb., 240, Special Term, March, 1862, BARNARD, J., it was decided, that in actions referred to in this section of the Code, the place of trial must be laid in a county in which some one of the parties to the action resides, without regard to the convenience of witnesses. A foreign corporation, having an agency and business office in one of the counties of this state, is not a resident of such county within the meaning of this section.

What is the result of the decisions under this section?

1. (2 Q.) The judiciary act of 1847, which required the venue to be laid in a county where some of the parties resided, meant parties in interest, and not the nominal parties to the record.

2. The Code requires all actions to be prosecuted in the name of the real party in interest.

3. (3 Q.) A transitory action should be tried in the county where the principal transactions between the parties occurred, and where it appears the largest number of the material witnesses reside.

4. A majority of witnesses, residing in one county, should not necessarily control the trial of the action in that county.

5. (4 Q.) In an action for a limited divorce, a mensa et thoro, the plaintiff may properly lay the venue in the county where she actually resides, although the domicil of the defendant is in another county.

6. (5 Q.) In an action in the nature of a quo warranto, the place of trial may be properly laid in any county of the state.

7. The people are a party whose residence extends to every county in the state.

8. (6 Q.) Under the costitution (1846), corporations may be sued in like cases as natural persons, before justices of the peace.

9. A railroad company may be sued before a justice of the peace in either of the coun ties of the state through which its track runs.

10. Railroad companies are to be treated as inhabitants and freeholders in each county where their track is laid, and are entitled to the same privileges, when sued, as inhabitants and freeholders.

11. In reference to the assessment of highway labor, railroad corporations should be included among and treated as inhabitants for all its purposes.

12. (7 Q.) Insurance companies and other corporations, created under the laws of this state, who are defendants in actions brought by non-resident plaintiffs, are entitled to have the action tried in the county where the corporation is located.

13. The residence of a corporation, created by the laws of this state, is in the county where its general business is transacted and located.

14. The fact that a corporation has an office in another county besides the one where its general business is transacted, where some of its business is done, does not change or affect their residence.

15. If a corporation have several places of its general business, it must also be deemed to have several places of residence.

16. Where the principal business of a railroad company is transacted in New York, and they also have a place of business in Albany, for the purposes of venue, they may be considered residents of Albany.

17. Under this section, the place of trial must be laid in a county in which some one of the parties to the action resides, without regard to the convenience of witnesses.

18. A foreign corporation having an agency and business office in one of the counties of the state, is not a resident of such county within the meaning of this section.

$126. Action may be tried in any county unless defendant demand trial in proper county.

If the county designated for that purpose in the complaint, be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answering expire, demand in writing, that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section.

The court may change the place of trial in the following

cases:

1. When the county designated for that purpose in the complaint, is not the proper county:

2. When there is reason to believe that an impartial trial cannot be had therein.

3. When the convenience of witnesses and the ends of justice would be promoted by the change.

When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties, in writing duly filed, or order of the court, and the papers shall be filed or transferred accordingly.

1. Question. Has this section been amended since its passage in 1848 ? Answer. It has, in 1851, which amendment reads as above.

2. Q. How did this section read in 1848}

A. As follows

$105. [1848.] If the county designated for that purpose in

the complaint, be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant shall, before the time for answering expire, demand in writing, that the trial be had in the proper county.

Questions.

3. Q. When and how is a defendant to secure the privilege of this section, when the place of trial designated in the complaint, is not the proper county! And has the section any reference to a motion for a change of place of trial for convenience of witnesses?

4. Q. Can the place of trial be changed before a written demand that it be changed, is served; and does a mere demand properly made, have the effect to change it?

5. Q. When will the place of trial be changed for the convenience of witnesses?

6. Q. When will the place of trial be changed on the ground that "there is reason to believe, that a fair and impartial trial cannot be had," by r ason of public excitement, &c.? 7. Q. Is a demand necessary before an application to change the place of trial for the convenience of witnesses, &c., under the 2d and 3d subdivisions of this section; and do these subdivisions authorize either party to apply for a change?

8. Q. When and how should application be made to change the venue or place of trial for the convenience of witnesses!

9. Q. Can the plaintiff move to change the venue or place of trial; and can one of several defendants make such a motion?

10. Q. What is a sufficient affidavit of merits, in form and substance, on a motion to change the venue or place of trial?

11. Q. What particular form or precedent is proper for an affidavit of merits on motion, to change the venue or place of trial?

12. Q. What is a proper form for an affidavit to oppose a motion to change the venue? 13. Q. Will the venue be changed where the plaintiff stipulates to bear all the expenses of bringing the defendant's witnesses to the county where the venue is laid?

14. Q. When will it be considered an attempted fraud upon the practice of the court, ty swearing to a large number of witnesses in order to change the venue?

15. Q. What is a proper notice to be served of a rule or order changing the venue; and what is the effect of service or non-service of such notice?

16. Q. When and how are costs allowed and collected on motions to change the venue, &c.?

17. Q. During the time a motion to change the venue is under advisement, can the plaintiff regularly take an inquest in the cause?

18. Q. When will the place of trial be deemed changed to the proper county "by consent of parties!

3. Q. When and how is a defendant to secure the privilege of this section, when the place of trial designated in the complaint is not the proper county? And has the section any reference to a motion for a change of place of trial for convenience of witnesses?

A. In Beardsley agt. Dickinson, 4 How., 81, Special Term, November, 1848. PARKER, J., it was decided, that it is the obvious intention of the Code, that the cause shall be tried in the county designated by sections 123, 124 and 125, unless the place of trial is changed by the court. Therefore, where, in an action for an injury to personal property, which arose in Saratoga county, and the plaintiff in his complaint, selected Rensselaer county as the place of trial, and the defendant, before answering, served a writ ten demand, that the cause should he tried in the county of New York, it was held, that the defendant was irregular in not demanding trial in the "proper county."

In Lynch agt. Mosher, 4 How., 86, Special Term. July, 1849, SILL, J., it was dicided, that where a county in which a party resides is designated in the first instance, this sec

tion has no application. It has no reference whatever to a motion to change the place of trial for the convenience of witnesses or parties. The sole object of the section is to point out the manner in which the defendant is to take advantage of the plaintiff's irreg ularity, when the venue is laid in the wrong county. He must exercise his privilege, however, before or at the time of putting in his answer.

In Milligan agt. Brophy, 2 Code R., 118 Special Term, February, 1850, HURLBUT, J., it was decided, that where a defendant desires to avail himself of the privilege given by this section of the Code, he must exercise his privilege before putting in his answer.

In Mairs agt. Remsen and others, 3 Code R., 138, Special Term, Oct., 1850, EDWARDS, J., it was decided, that a demand to have the trial in the proper county, may be made at the time of putting in the answer.

In Chubbuck agt. Morrison and others, 6 How., 368, March, 1852, HARRIS, J., it was decided, that by the provisions of the Code, any action may be tried in any county. The plaintiff in any action may designate any county as the place of trial, and unless it be changed in the manner provided in this section, the place designated will remain the proper place of trial.

In Houck agt. Lasher, 17 How., 520, General Term, March, 1859, HARRIS. J., it was decided, that every action under the Code is so far transitory, that the plaintiff may, with impunity lay the venue in any county in the state. If the proper county has not been selected, the defendant has the right to have the place of trial changed. But to secure this right he must, within a limited time, make the demand prescribed by this section, and then, the demand having been made, unless the change be made by consent of parties, an order of the court directing the change must be obtained. The court has no authority, on a motion, to change the place of trial for the convenience of witnesses, on denial of that motion, to order it changed for the reason that the county designated for that purpose in the complaint, is not the proper county-no previous demand for such change having been made.

4. Q. Can the place of trial be changed before a written demand that it be changed is served; and does a mere demand properly made, have the effect to change it?

A. In Hasbrouck agt. McAdam, 4 How., 342, Special Term, April, 1850, EDMONDS, J., it was decided, that a change of the place of trial is not effected by the defendants merely serving a demand in writing, that the trial be had in the proper county under this section. If such demand is made for the trial in the proper county, and the plaintiff neglects to procure the change accordingly, the defendant may avail himself of the omission, on the trial, by application for a dismissal of the complaint. To change the place of trial, application must be made to the court by one party or the other, and either may make it.

In The Vermont Central Railroad Co. agt. The Northern Railroad Co., 6 How., 106, Special Term, July, 1851, HUBBARD, J., it was decided, that a motion to change the place of trial cannot be made, before a written demand for the required change is made, under this section. But the change is not effected after the proper demand has been served under this section, until the order of the court upon the motion.

In Conre and others agt. The National Protection Insurance Co., 10 How., 403, Special Term, February, 1855, BOCKES, J., it was decided, that if a demand that the place of trial of any action be changed to the proper county is made pursuant to this section, the defendant need not move to change the place of trial until after the time to amend the complaint expires.

In March agt. Lowrey and others, 16 How., 41, General Term, December, 1857, MITCHELL, J., it was decided, that in a local action for the foreclosure of a mortgage, the court is not expressly authorized in the first instance, to change the place of trial, where the county designated, for that purpose in the complaint, is not the proper county. A demand in the first place, to change the place of trial, and a consent or an order of the court thereon are essential, otherwise the trial may be had where the venue is laid.

5. Q. When will the place of trial be changed for the convenience of witnesses ?

A. In Spencer agt. Hulbert, 2 Cai., R., 374, General Term, February, 1805, it was decided by the COURT, that in a transitory action the defendant is entitled to change the venue to where his witnesses reside, unless the plaintiff show he has witnesses else where.

In Mumford agt. Cammann, 3 Cai. R., 139, General Term, August, 1805, it was decided by the COURT, that the rule as to changing the venue by a defendant, on account of the residence of his witnesses, does not apply between the counties of Kings and New York.

In Stoutenbergh agt. Legg and others, 2 John., 480, General Term, November, 1807, it was decided by the COURT, that where the cause of action arises in the county where the venue is laid, and the plaintiff has material witnesses residing there, he may retain the venue.

In Manning agt. Downing, 2 John., 453, General Term. November, 1807, it was decided by the COURT, that in transitory actions, the plaintiff will not be allowed to retain the venue upon a a stipulation to give material evidence in the county where the venue is