balance of Jur. O. S. 306; Blackman v. Bainton, 15 C. B. N. S. 432), The Court Where may, however, in such a case, change the venue to an intermediate county convenience (Bumford v. Greuler, 6 Ir. Jur. N. S. 392). The defendant may lose his undeterright to change the venue on the grounds just mentioned, by doing acts cal- mined. culated to prejudice the plaintiff with the class of persons who would, in all probability, be upon the jury panel in the county to which it is proposed to change the venue (Wilson v. Thompson, 1 Ir. Jur. N. S. 187). sary. If it be necessary that the jury should view the premises, &c., in dispute, Where view that fact will weigh strongly with the Court upon a motion to change the jury necesvenue (M'Donnell v. Carr, Hayes, 375); but the necessity for a view jury must be shown (M'Loughlin v. Royal Exchange Assurance Co., 9 Ir. L. R. 510; Walshe v. Murray, 1 Huds. & B. 10). Where trial can be more properly had Re-changing venue. The Court will also, as above mentioned, change the venue in cases where a trial can be more properly had elsewhere than in the venue as laid. As a general rule, the Court will, however, be slow in listening to allegations of elsewhere. the existence of political feeling or prejudice as a reason for a change of Political feelvenue (Dowling v. Sadleir, 3 Ir. C. L. R. 603); or of the plaintiff's in- ing. fluence with the persons likely to serve on the jury (Prosser v. Cuddy, 1 Ir. Plaintiff's Jur. N.S. 205; Crooke v. Rice, 6 Ir. Jur. N. S. 398). If, however, there influence. be reason for believing that the jury might be influenced by one of the parties to the suit, the Court will change the venue (The Town Commissioners of Enniskillen v. The Earl of Enniskillen, 12 L. R. 36). And in case where the venue has been changed on the application of the defendant, and an abortive trial had at the place to which it has been changed, the Court will bring back the venue to where it was originally laid, if there be reason for believing that a satisfactory trial cannot be had in the first mentioned place (Kelly v. Londonderry and Enniskillen Railway Co. 3 Ir. Jur. N. S. 392; Atkinson v. Mills, 8 Ir. Jur. N. S. 153). So also the Court will permit the plaintiff to change a venue selected by himself when it appears that in consequence of delays arising from the defendant's conduct, or even from accidental causes the plaintiff will be late in going to trial unless the venue be changed (Jennings v. Lindsay, 6 Ir. Jur. O. S. 81; Frazer v. Edwards, 5 Ir. C. L. R. 54c). As to the plaintiff changing the venue in other cases, see Enright v. The Promoter Insurance Company, 7 Ir. Jur. N. S. 153; and as to the costs in such a case, see infra. Where a plaintiff' deliberately selects a venue he will not, in general, be allowed to change it afterwards (Shea v. Adams, Ir. R. 1 C. L. 450). Plaintiff changing his own venue. A motion to change the venue should not be made before defence filed When motion (Wilson v. Bragg, 8 Ir. Jur. N. S. 256); when the defence is filed, it may be may be made. made, although issue has not been joined (Kennedy v. Lynch, 10 Ir. C. L. R. Ap. 44; Dowler v. Collis, 4 M. & W. 531), with which compare The Guardians of the Youghal Union v. Atkinson, 9 Ir. C. L. R. App. 17. But where two of three defendants had taken defence, the third being out of the jurisdiction, the Court refused, with costs, an application by the two who had taken defence to change the venue (Corah v. Ward, 13 Ir. C. L. R. Ap. 42). A motion by the defendant to change the venue will be heard when the defendant has lodged his defence, and the assizes are close at hand, though the summons and plaint has not been filed (Egan v. Vesey, 7 Ir. Jur. N. S. 323). It should be made within a reasonable time, so that the plaintiff may not be delayed in going to trial more than is necessary (Quin v. Quin, 1 Ir. I. T. 404; Walsh v. Hopkins, Ib. 26). The affidavits in support of the application should set forth the facts Affidavits. Costs. How change effected. Amending generally. Setting out of deeds in pleading. 15 & 16 Vict. c. 76, s. 55. Profert and oyer. Present practice as relied on in relied upon, and where the change of venue is sought upon the ground of the residence of witnesses, the affidavit should state specifically who the proposed witnesses are, where they reside, that the plaintiff intends to examine them, and that their evidence is material (Donnelly v. Darcy, 2 Ir. Jur. N. S. 187; Busteed v. Raymond, 7 Ir. Jur. O. S. 22; Gibbings v. O'Dell, 1 Ir. L. T. 369). When a defendant succeeds in a motion for change of venue, the costs of both sides are generally made costs in the cause; when the defendant fails he gets no costs, and the plaintiff's costs are made costs in the cause (Shaw v. Harris, 7 Ir. Jur. O. S. 111; Prosser v. Cuddy, 1 Ir. Jur. N. S. 105); or if the motion was clearly untenable, the defendant may be ordered to pay them (Corah v. Ward, 13 Ir. C. L. R. Ap. 43; Wilson v. Bragg, 8 Ir. Jur. N. S. 256). Where the venue is changed upon the plaintiff's application he will generally have to bear the costs of the motion (Arkins v. Barnard, 15 Ir. C. L. R. Ap. 2), including the defendant's costs of appearing (Comerford v. Daly, 11 Ir. C. L. R. Ap. 62). But in cases where the plaintiff is clearly entitled to change the venue, the defendant will not get the costs of opposing the motion (Arkins v. Barnard, ubi supra). When the venue is changed in a personal action, the change is effected by an amendment of the summons and plaint In actions of ejectment the change is effected by entering a suggestion upon the record. When a plaintiff is allowed to "amend as he may advised," he may change the venue as originally laid (Costello v. Woods, 11 Ir. C. L. R. App. 31). 63. It shall not be necessary for any party, in his summons and plaint or defence or other pleading, to set forth more of any deed or document than such parts thereof as are material to his action or defence, or the purport and effect thereof; and it shall not be necessary to make profert of such deed or document, and if profert be made it shall not entitle the opposite party to crave oyer of or to set out upon oyer such deed or other document (u). (u) Formerly, when a party in his pleading relied upon a deed to which he was a party, he was obliged, with certain exceptions, to make profert of it, and thereupon the opposite party might crave oyer, and set out the deed, which became then a part of the pleading of the party relying on it, and the opposite party might, if so advised, demur. The above section, however, having abolished oyer, it was for some time after the passing of the Act a matter of doubt whether the Court could, on the argument of a demurrer, refer to a deed relied on by the party whose pleading was demurrrd to, and found its judgment on the actual terms of the deed itself, in place of on the terms of it as set forth in the pleading. It was, however, decided by the Court of Exchequer in The Guardians of Nenagh Union v. Armstrong (not reported, but referred to in the case next mentioned), that the Court had, under this and the next section of the Act, power to do so, and, accordingly, in that case, which was an action upon a bond, to which a defence was pleaded, and a demurrer taken to the defence, the Court in giving judgment upon the demurrer, founded its judgment on parts of the bond not set forth in the pleadings; and in Armstrong v. Turquand, 9 Ir. C. L. R. 32, the Court of Common Pleas adopted a similar course. Accordingly the rule now is that, where a party in pleading relies upon any deed or document, in his possession, the opposite party has a right to call for its production, and when produced, he may, if so advised, demur to the pleading, incorporating in his demurrer the document produced, and the document, being afterwards produced upon the argument of the demurrer, and being marked by the officer of the Court, the Court will found its judgment upon the actual terms of the document in question. The rule in question is applicable not merely to deeds, but to all other documents and instruments in writing-as, for instance, where the document relied on is a magistrate's warrant, enabling a road contractor to enter the lands of a third party and take stones, pursuant to the 162nd section of the Grand Jury Act (Fitzpatrick v. Pine, 13 Ir. C. L. R. 32). The cases just referred to must, however, be carefully distinguished from those cases where the document relied on is not in the possession of the party pleading. In the first class of cases no embarrassment can arise from the course adopted. The party pleading is not prejudiced because the judgment of the Court proceeds upon the very document relied on by him. Nor is the party demurring prejudiced, because, when the document is produced, he may, if he choose, in place of demurring, plead or take issue, and so dispute the validity in point of fact of the document produced. If, however, the document is not in the possession of the party relying on it, and is not accordingly produced by him, the opposite party cannot set out the document in question in his pleading, and then demur. To allow him to do so would be to deprive the other side of the means of showing that, in point of fact, the document so set forth was not the document relied upon, and, accordingly, when the document in question is in the possession of the party demurring, a pleading incorporating the document, and then demurring, will be set aside as irregular (Maher v. Purcell, 13 Ir. C. L. R. 133). In that case, however, the Court intimated that if the parties had consented that the document so set forth should be treated as the document relied on, the case would then be same in effect as Armstrong v. Turquand. As to the corresponding English practice, see Sim v. Edmonds, 13 C. B. 240. 64. When any party shall rely on any deed or document, or any portion thereof, in his pleading, the said deed or document shall be produced upon every trial and argument in the cause, unless its nonproduction can be satisfactorily excused; and in default thereof it shall be lawful for the Court or Judge before whom such trial or argument shall be had to exclude the said party so in default from all benefit or advantage of the said deed or document, or to make such order for the postponement of the trial or argument, and the payment of the costs occasioned by the said postponement, as shall seem to be just (v); and the opposite party shall be at liberty, by notice in writing, to demand of the party so relying on the said deed or document an inspection or copy, or both Where document not in the party repossession of lying on it. Inspection of documents. How far notice to pro an inspection and copy of the same, including the names of the witnesses by whom it was attested, if any, and any endorsement or defeasance thereon, and the production of it for the purpose of its being stamped, if necessary, and also the production, inspection, or copy of any other deed or instrument whereof inspection could be obtained by a bill of discovery; and such copy, when furnished, shall be certified. to be a correct copy by the attorney furnishing the same; and in case such copy shall not be delivered, or such inspection or production shall not be granted, the party demanding the same shall not be at liberty to apply to the Court or a Judge for an order for such copy or inspection or production, or copy and inspection and production, as such Judge shall think fit (w), but such demand, notice, or order shall in no case operate as a stay of proceedings, except when a special order shall be made by a Judge to that effect (x). (r) As to the effect of this provision in conjunction with the preceding section, see the last note. (w) As a general rule inspection will be granted of any deed of which, if it were not for the Act, profert must have been made (The Penrith Harbour, &c., Co. v. Cardiff Waterworks Co., 7 C. B. N. S. 816). As to the discovery, inspection, and production of documents other than those relied on in pleading, further powers are given to the Court by section 55 of the C. L. P. Act, 1856 (which see; and several of the cases in which the Court has ordered the production of such documents will be found referred to in the notes thereto. (x) By the 57th G. O., 1854, it is provided, that "when any party shall duce a stay of have served a notice, requiring a copy of any deed or document, he shall proceedings. have the same time for filing his pleading after compliance with such notices as had at the time of service thereof; such time to be in no case less than twenty-four hours." The effect of this Order, taken in conjunction with the closing part of the section we are considering, was discussed in Boyd v. Nethery, 10 Ir. C. L. R. 369, where it was held that a judgment marked after service of a notice to produce a document, but before compliance, was perfectly regular, and the Court, in giving judgment, stated that the construction of the rule was, that where notice has been served to produce documents, if that be complied with by the opposite party before the time for pleading has expired or judgment marked, the date of the service regulates the time which the defendant has for pleading, but that in case it was not produced the words of the rule were not intended to repeal the 64th section. and plaint for libel or slander. Summons 5. In actions of libel and slander the plaintiff shall be at liberty to aver that the words or matter complained of were 15 & 16 Vict. used in a defamatory sense, specifying such alleged defamatory sense, without any prefatory averment to show how such words or matter were used in that sense (y). 76, s. 61. (3) Formerly in actions of slander and libel, when the words used did not Old law. state in direct terms that which by the law was in itself actionable, it was necessary to show in the declaration how they came to bear the meaning attributed to them in the inuendo; and if the words with the meaning so attributed to them were not per se actionable, it became further necessary to state the circumstances rendering them such, as, for instance, that the plaintiff was a trader, and the words were spoken of him in reference to his trade. By the above section, however, it is now unnecessary to state the facts show- New law. ing how the words were used in the sense attributed to them, and accordingly the question whether the words complained of are capable of bearing the Inuendo a sense put on them by the inuendo is one altogether for the jury, and cannot question for be decided by the Court upon demurrer (Currigan v. Ryan, 11 Ir. Jur. the jury. N. S. 406; Pearson v. Smith, 7 Ir. Jur. N. S. 275; Hemmings v. Gasson, E. B. & E. 346); and the earlier case of Lavelle v. Oranmore, 9 Ir. Jur. N. S. 55, in which a demurrer to a plaint was allowed upon the ground of the inuendo being too large, must be considered as overruled. In fact, the judgment in that case was afterwards reversed upon appeal by the Exchequer Chamber (Currigan v. Ryan, ubi supra, per O'Brien, J.). When the words were alleged to have been spoken of the plaintiff in his trade, the Court of Exchequer held upon demurrer that the circumstances showing that the words were so used, or were capable of being so used, should be shown (M'Dougall v. Tyrrell, 1 Ir. Jur. N. S. 465). 4 defamatory. When the innuendo is not defamatory, there is nothing, of course, in the Where inAct to prevent the defendant from demurring (Mawe v. Pigott, Ir. R. uendo not C. L. 54); and see Teacy v. M'Kenna, Ir. R. 4 C. L. 374. The defendant in an action for libel may plead that the words are no libel (Nixon v. Harvey, 8 Ir. C. L. R. 446). precedent 66. The plaintiff or defendant in any action may aver per- Performance formance of conditions precedent generally (z), and the de- of conditions fendant shall not deny such averment generally, but shall may be specify in his pleading the condition or conditions precedent generally. the performance of which he intends to contest (a). averred 15 & 16 Vict. c. 76, s. 57. (z) Formerly the plaintiff and defendant had to aver in their several Averring pleadings the performance of conditions precedent with certainty and par- performance ticularity, and if they failed to do so the pleading would be bad on demurrer. of conditions Under the above section, however, a general averment of their performance precedent. is now sufficient, and the defendant must specify, particularly in his defence, any condition, on the breach of which he intends to rely as an answer to the action. The general averment of the performance and happening of all things What is imnecessary to the plaintiff's right of action imports in itself a sufficient state- ported by a ment of his being ready and willing to do all things necessary to be done on general averhis part; as, for instance, his readiness and willingness to pay for goods ment. upon delivery, in an action brought for a non-delivery (Bentley v. Dawes, 9 Ex. 666). It also amounts to a sufficient averment of a demand having been made whenever such was necessary (Newry and Armagh Railway Co. v. Ulster Railway Co., Ir. R. 4 C. L. 62). As to what it will not amount to, see Bloomer v. Darke, 2 C. B. N. S. 165; Feosard v. Mugnier, 18 C. B. N. S. 286; Wolverhampton Waterworks Co. v. Hawkesford, 6 C. B. N. S. 336. F |