liability to either party on account of the matters in controversy. The order must further provide that if N. S. shall not within twenty days after service of a copy of this order and a copy of the complaint, appear and defend the action, the moneys so deposited shall be paid over to the plaintiff. a. The provisions in section 122 are founded upon the English statute 1 & 2 Wm. 4, c. 58, and hence the decisions upon that statute have with great propriety been referred to. They appear to have settled the rule that it is only when no other question than the right of property is meant to be litigated, that an interpleader can justly be allowed. When it is alleged that the person who seeks to be discharged as a mere depositor or stake-holder is liable, upon any ground independent of this title, the application must be denied. The words of the English statute do not at all differ in meaning from those of the code; and the court of exchequer has held, that by their necessary construction they preclude a purchaser of goods from calling his vender to interplead with a third person claiming to be the owner. The provisions of the code, like those of the English statute were certainly not designed to introduce new cases of interpleader, but merely to enable defendants in cases where an interpleader is proper, to relieve themselves by a summary proceeding from the delays and expense of a formal action. Sherman v. Partridge, 1 Abbott, 260. * SECTION 123. 124. 125. 126. TITLE IV. Of the place of trial of Civil Actions. Actions to be tried where subject matter situated. § 123. [103.] (Amended 1849.) Actions to be tried where subject matter situated. Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situ ated, subject to the power of the court to change the place of trial, in the cases provided by statute: 1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property; 2. For the partition of real property; 3. For the foreclosure of a mortgage of real property; 4. For the recovery of personal property distrained for any cause; b. This section and section 124 together, compose section 103 of the Code of 1848. c. Under section 103 of the Code of 1848, in an action brought to foreclose a mortgage, it appeared that the mortgaged premises were in the county of Cortland. That the money was loaned in the county of Columbia, where the mortgage, after being recorded was delivered to the mortgagee. The county of Columbia was designated in the complaint as the place of trial. Before the time of answering expired, defendant served a written demand that the trial be had in Cortland. Plaintiff's attorneys, in reply, served a notice on defendant's attorney, insisting that Columbia was the proper county in which to try the action, and saying they should notice the cause for trial in that county. Defendant then moved to change the place of trial from Columbia to Cortland, and Mr. Justice Parker in granting the motion, said, "The question is, which is the proper county for the trial of this action, under s. 103 [123] of the Code ?" I am not satisfied that the cause of action arose in Columbia because the money was loaned there. That would certainly be the case in the action on the bond alone; but where the plaintiff seeks to foreclose the mortgage, the loan of the money must be considered in connection with the lien on the land; and the cause of action cannot be complete without a lien in Cortland county. I think Cortland county should have been designated by the plaintiff as the place of trial. Miller v. Hall, 1 Code Rep., 113. a. Where a loan is made by one non-resident to another, out of this State, and secured by a draft drawn upon a person residing within this State, the cause of action cannot be said to have arisen within this State. Western B'k v. City B'k of Columbus, 7 Pr. R., 238. b. Where a contract is made at one place and is to be performed at another, the canse of action upon such contract arises at the latter place. Burckle v. Eckhart, 3 Coms., 132. c. Where a complaint among other things prayed, that the right of the defendant to the land in question in the action, might be adjudged to be subordinate to the right of the plaintiff, and that the defendant might be ordered to give up the possession of the said land, Edwards, J., said. I think this is a case within the latter clause of section 123, subd. 1, of the code. Mairs v. Ramsen, 3 Code Rep., 138. 124. [104.] (Amended 1849.) Actions to be tried where cause of action arose. Actions for the following causes must be tried in the county where the cause or some part thereof arose, subject to the like power of the court, to change the place of trial in the cases provided by statute: 1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offence committed on a lake, river, or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offence was committed; 2. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command or in his aid, shall do anything touching the duties of such officer. d. This section and the preceding (section 123) are taken verbatim from section 103 of the code of 1848. e. These actions were made local by the revised statutes, 2 R. S., 2d ed. 395, s. 8,9; ib. 277, s. 28; ib. 330, s. 3. Under the revised statutes (2 R. S., 277, s. 28), of which this section is nearly a literal transcript, it was held that the provisions respecting actions against officers applied only to affirmative acts, and not to mere omission or neglect of official duty. 13 Wend., 35, 266. f. The last mentioned provision of the revised statutes, is amended by the laws of 1843, p. 257, cap. 201, by adding thereto the following proviso: Provided, however, that actions brought by the county or town officers of one county in their official capacity, against the county or town officers of another county in their official capacity, shall be laid in some county adjoining the county of the defendants, except the county of the plaintiffs. a. The revised statutes (2 R. S., 330, sec. 2, sub. 3), provide that for the purposes of a fair and impartial trial, the court may order the issues to be tried in some other county, when it appears that a fair and impartial trial cannot be had in the county in which the venue is laid; and by sec. 3, it is provided, that in actions against public officers, or against persons specially appointed to execute the duties of such officers, for any act done by them by virtue of their offices respectively, and in suits against other persons, who, by the commandment of such officers, or in their aid or assistance, do any thing touching the duties of such office, which are required by law to be laid in the county where the fact happened, if it shall not appear on the trial that the cause of such action arose within the county where such trial is had, the jury shall be discharged and judgment of discontinuance shall be rendered against the plaintiff; and see, 9 Wend., 208, 501; 12 ib., 217, 265, 51. b. An action by the people, and prosecuted by the attorney general, is within the second subdivision of this section. The People v. Hayes, 7 Pr. R., 248. c. Commissioners appointed by statute to lay out and build a road for the use of the public, are public officers. Ib. d. A public officer, when sued for an official act, may waive the benefit of the statutory provision that, unless it appears upon the trial that the act was done within the county where the trial was had, the jury shall be discharged and a judgment of discontinuance be entered. It is upon the trial that the objection must be raised, and the omission of the defendant to raise it then is to be regarded as a waiver by which he is concluded. Howland v. Willetts, 5 Sand., 219. § 125. [104.] Action to be tried where parties reside. In all other cases the action shall be tried in the county in which the parties or any of them shall reside at the commencement of the action; or if none of the parties shall reside in the State, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute. e. The 46th section of the judiciary act of 1847 (Laws of 1847, p. 333), provided that "all other issues of fact joined in any action shall be tried in the county in which the parties or some of them reside," &c.; and it was held that by the word "parties," was meant parties in interest, and not the nominal parties or parties to the record. Hart v. Oatman, 1 Barb. S, C. R., 229; and see Henry v. Bank of Silina, 5 Hill, 532. Therefore on a motion to change the venue from New York to Monroe, on the ground among others, that neither of the parties to the action were residents of the city of New York, but that one resided in Seneca, and the other in Monroe county, it appearing by affidavit, that one Ernest Fielder, was the real plaintiff in interest, and that he resided in the city of New York, the motion was denied. f. In an action in the nature of quo warranto, the place of trial may properly be laid in any county in the State. The people are a party whose residence extends to every county. The People v. Cook, 6 Pr. R., 448. g. Itseems that in cases where the place of trial is at the option of the plaintiff, he may by an amendment, of course within the time allowed for an amendment, of course change the place of trial named in the complaint. 7 Cow., 164. h. Can a railroad corporation have a residence in any county? (Vermont R. R. Co. v. Northern R. R. Co., 1 Code Rep., N. S. 401; 6 Pr. R., 106). It is a resi dent of every county through which its road passes. (15 Barb., 560), and a resident of the county where the office of the company is located, and its general business carried on. Conroe v. Nat. Pro. Ins. Co., 10 Pr. R., 403. a. The place of trial of a transitory action, where the plaintiff and defendants reside in different counties, should be in the county where the principal transaction between the parties occurred, and where it appears the largest number of the witnesses, who know any thing of the facts, reside. Jordan v. Garrison, 6 Pr. R., 6. Change of place of trial. purpose in the complaint, § 126. [105.] (Amended 1851.) If the county designated for that 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. The amendment is the addition, at the end, of the words in italic, 1. On changing the place of trial named in the complaint, for the reason that the county designated is not the proper county. b. By the "proper county" is meant a county in which one of the parties to the action resides: per Justice Sill, in Lynch v. Mosher, 4 Pr. R., 86-88; 2 Code Rep., 54. c. The demand should be that the trial be had in the "proper county ;" and where a defendant served a demand that the cause be tried in the " county of New York," his demand was held to be irregular, and that instead of naming the county in which he desired the trial to be had, he should have asked that the cause be tried in the proper county." Beardsley v. Dickerson, 4 Pr. R., 81. d. The demand must be made before the time for answering expires; and the time for answering will be deemed to expire on the service of the answer, although the answer may be put in before the expiration of the time allowed for that purpose; and the demand to have the trial in the proper county served after an answer may be disregarded. Milligan v. Brophy, 2 Code Rep., 118. But the demand may be made simultaneously with the service of the answer. Mairs v. Remsen, 3 Code Rep., 138. a. The demand does not of itself change the place of trial; and if only such demand be made, and the plaintiff neglect or refuse to change the place of trial to the proper county, the remedy of the defendant is to apply on the trial for a dismissal of the complaint. (Hasbrouck v. McAdam, 3 Code Rep., 39; 4 Pr. R., 342.) b. Under the former practice, where the place of trial mentioned in the declaration (the venue) was not the proper county, the only remedy of the defendant, except he was a public officer, was by demurrer, plea in abatement, or motion for a nonsuit at the trial. 12 Wend., 265, 51 (b). But by the present practice it seems, that if after a demand to have the place of trial changed to the proper county the plaintiff neglects or refuses to make the change, the defendant may move to have the place of trial changed, on) the ground that the place of trial mentioned is not the proper county. Mairs v. Remsen, 3 Code Rep., 138; Moore v. Gardner, 3 ib. 224; 5 Pr. R., 243; Hasbrouck v. McAdam, 3 Code Rep., 39; 4 Pr. R. 342. c. In Hasbrouck v. McAdam, supra, Edmonds, J., held, that to change the place of trial, application must be made to the court by one party or the other; and either party may make it; and he continued by saying: "The necessity of an application to the court is quite apparent; for, suppose the plaintiff resides in one county, the defendant in another, and the place of trial is designated in a third-into which of the two proper counties is the place of trial to be changed? And so if there are several defendants residing in different counties, which defendant is to have the choice? d. "The whole thing is subject to the power of the court to change the place of trial under section 125, and its power must be invoked. The defendant by his own act cannot change it." e. These views were confirmed by Hubbard, J., who, in delivering his decision in the case of the Vermont Central R. R. Co. v. The Northern R. R. Co., 6 Pr. R., 107, says, By the judiciary act of 1847, section 46, the only remedy was by motion if an improper venue was designated, and such motion was required to be made before the time for answering expired. The code preserves the principle of that act in regard to the locality of the venue, but substitutes a new practice in relation to the removal. By the 126th section a written demand in place of the motion is required. A motion is only fequisite or allowable, it seems to me, in the event the demand is disregarded. The object of this material change of the practice in this particular may have been, and probably was, to allow the plaintiff an opportunity of voluntarily correcting his error by amendment, stipulation, or otherwise, without the expense and delay of a motion. f. "The demand alone, it seems, does not, ipso facto, operate to change the venue. If not changed by the voluntary act of the plaintiff, it must be effected by the order of the court on motion. This order is clearly contemplated by rule 3 of the supreme court, which provides that in case the place of trial is changed for the reason that the proper county is not specified as required by section 125 of the code, the papers on file at the time of the order making such change shall be transferred to the county specified in such order. The venue is changed by the order, and not by force of the demand. As the statute prescribes the practice, it seems imperative that a written notice requiring the removal of the venue to the proper county should first be served, and until that is done a motion is premature. g. "I have used the term venue as synonymous with the place of trial to be designated in the complaint, and in contradistinction to the place of trial with reference to the convenience of witneses, &c. The term is omitted in the code, although the distinction between the venue and the place of trial is preserved, as it existed under the judiciary act; and for perspicuity the words may still with propriety be used, when defining the statutory locality for the trial." h. It seems that the motion by the defendant to change the county of trial named in the complaint to the proper county, and the granting an order on such motion, will not prejudice the right of the plaintiff afterwards to move at the proper time and on the necessary affidavits to change the place of trial either for the convenience of witnesses or to obtain an impartial trial. Moore v. Gardner, 3 Code Rep., 224; |