ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-YORK, In MAY TERM, in the TWENTY-SEVENTH YEAR of our INDEPENDENCE. Bogert and Lewis, Executors of Bogert, against THI NEW-YORK, In an action for an efcape from ed is of record HIS was an action for an escape from execution. The venue was laid in the city of New-York. The defendant at a former term, on an affidavit ftating the cause of action (if any) to have arifen in the county of Montgomery, and adding that the defendant's witneffes, who were numerous, refided in that county, moved to change the venue from NewYork to Montgomery. It was then contended, that this action was so far local that the plaintiff was bound to lay the venue in the county where the prisoner had escaped: but the court was of opinion, that the fuit was tranfitory; that the plaintiffs had a right to lay the venue where they pleased in the first instance, and the defendant enjoyed the common privilege of changing it on the ufual affidavit. On that a rule was made that the venue fhould be changed from the ry, if the county where an escape city of New-York to Montgomery, unless the plaintiffs, within happens be not twenty days, should ftipulate to give, on the trial, material the proper coun-vidence arifing in the city of New-York. The plaintiffs id ftipulate accordingly, and tranfmitted a notice of it to the B fubftratum as tion local where the judgment is recorded. Que ty for the venue? May 1803. NEW-YORK, defendant's attorney by mail to Johnstown in Montgomery county; four days after which, and before, according to the Bogert & anoth. course of the mail, the defendant could have received the notice, he pleaded in bar fresh purfuit and recaption before action brought. V. Hildreth. See Mellor v. E. 387. Pink Riggs now moved that the plaintiff be discharged from his Barber, 3 D. & ftipulation, on the grounds, first, that the substratum of the ney v. Collins, 1 action being the judgment against M'Donald, which was filed in New-York, the cause of action arose there ;* and, fecondly, that the defendant, having pleaded before he received notice of the ftipulation, had waived the rule for changing the D. & E. 571. Cliffold v. Clif fold, ibid. 647. Talmafh v. Pen ner, 3 Bof. & Pul. 12. venue. Per curiam. This is a motion to vacate a rule entered the laft term, "for changing the venue to Montgomery, unless "the plaintiff's would undertake to give evidence material to "the iffue arifing in the city and county of New-York." It is now faid, that the court committed an error in changing the venue; because, there being matter of law and matter in pais, material to the iffue, in different counties, the plaintiff might elect to lay his action in either; and that, in fuch cafes, it cannot be changed, unless for urgent or particular reasons. This rule when well understood is a falutary one, but it does not apply to this cafe: it means, that when official acts are done by the defendants in several counties, fome of which are matters of record, and others of fact, there the plaintiff has his election. Thus in the cafe of Griffith v. Walker, 1 Wil. 336, which was an action against the sheriffs of Radnorfhire for a falfe return to a fcire facias, the venue of which was laid in Herefordshire, it was alleged, on demurrer, that the action ought to have been laid in Radnor, because whatever acts the fheriff does officially must be done in his own county, or at least the law fuppofes them done there: but the court faid, the sheriff may indorfe his writ any where; and, as it is alleged that he did this in Herefordshire, the plaintiff has his election to lay his action where he can prove the fact done. Here the return was matter of record, but it is not on that account merely that this election is given, but because the fheriff was the party who made that return, which was the gift of the fuit. If this return had afterwards been filed (as was no doubt the cafe) in the office of the Court of King's Bench, it would not have juftified the laying of the venue in that * V. Hildreth. 3 county. In the cafe before us it is faid, that the judgment NEW-YORK, roll against the party who escaped is filed in an office kept in May 1803. the city and county of New-York, and therefore the venue Bogert & anoth, cannot be changed. This judgment was no act of the sheriff's, and therefore not like the case of a return made by him in a particular county. Nor is it the ground of this action, which is, emphatically, the escape from the jail of Montgomery. A principal reafon for permitting a plaintiff to retain the venue where he has laid it, arifes from the circumftance of his having material witneffes there. This rule fhould not be abused by too much refinement. If the recovery against the party who has escaped must be given in evidence on the trial, it may be done by exemplification, which is the proper way; and this may be carried without expenfe to Montgomery. Bulwer's cafe, in 7 Co. 1, only determines, and that on demurrer, that an action for maliciously outlawing the plaintiff might be laid in the county where the capias utlagatum was executed; and not neceffarily in Middlesex, where the wrong was commenced by iffuing the capias ad fatisfaciendum. This decides nothing; for although the plaintiff may, in many cafes, in the firft inftance choose his venue, it does not follow that the defendant shall not change it, or that the court 286, Mayor of would not, in that very cafe, have changed it on the common art, 2 Black affidavit. The cafe of Cameron v. Gray, in 6 T. R. 363, is 1069. fubfequent to the Revolution, nor can the facts be all difclofed. Lord Kenyon would hardly have said, (and yet such is the effect of that decifion) that all actions for infractions of patent rights are local, and must be tried at Weftminster, folely because the patent, which is its fubftratum, iffued there. If this be his meaning, we are at liberty, confidering the date of this cafe, to differ from his Lordfhip; and it appears to me, with due deference, that the county in which the right of the patentee was invaded was the proper theatre of trial; for there, and not elsewhere, the caufe of action arofe. So in an action for an escape, unlefs particularly circumstanced, many reasons occur why a trial fhould be had in the county from which the prifoner fled. A sheriff ought not lightly to be called out of his county: the witneffes alfo muft, generally speaking, be there; nor fhould a public officer be subject to the oppreffion and expenfe of attending with his witnesses at a distance. Yet we are now called on, not only to fanction * See 1 Lev. 114. Berwick v. Ew May 1803. V. Hildreth. NEW-YORK, this practice in one case, but to render it universal and permanent; or, in other words, to declare, that every sheriff, Bogert & anoth. however diftant he may refide, fhall answer in Albany or New-York for efcapes, for no other reafon than because the `judgment or writ on which the perfon was arrested is to be found in one of thofe counties. It is aftonishing that actions of this kind have ever been regarded as tranfitory: this, however, without any decifion on the point, appears to be the cafe. Why they should be local, has already been fuggested. Much vexation must be the confequence if we decide (which will be the effect of a vacatur) this rule, that in no case shall a fheriff have a trial of this kind in his own county, because a judgment, which can be proved without the perfonal attendance of any one, has been rendered elsewhere. Actions of this nature are within the reafon of the "act for the more eafy pleading in certain fuits rendering local certain fuits against sheriffs and other public officers ;" and it would be a Livingfton J. good rule, in which I* fhould heartily concur, to make all the opinion of actions of this kind triable in the county to which the officer belongs, unlefs ftrong circumstances rendered it improper. Upon the whole, we are well fatisfied with our decision the laft term. It was full as favourable to the plaintiff as he had any reason to expect, and ought not to be disturbed. who delivered the court. I. Cro. Eliz. 574 + His Honour Radcliff J.† concurred, obferving, however, that according referred to the to the English practice he took the rule to be, that where following authorities: 7 Co. 1. evidence material to the plaintiff's action arifes in different Bulwer's cafe, counties, the plaintiff has a right to elect the county in which Wil. 336. Plow. to lay his venue, and to keep it there; that the rule is the 37. b. Styl. 107. fame, whether the evidence confift of matters in pais in each 2 Bl. Rep. 240. 2 D. & E. 238. county, or of record in one and in pais in another. Pursuing hid. 275. 6 D. that practice, the plaintiffs would be entitled to retain the venue in New-York. But he thought this a question in which we had a right to prescribe a rule for ourfelves. Applications to change the venue must in general reft in the direction of the court, and be regulated by the circumstances of the cafe. & E. 363. Townsend against New-York Infurance Company. MOTION for a commiffion to examine. This caufe had been once deferred for want of teftimony, to acquire which a Townsend V. N. Y. Inf. Com. commiffion had iffued. The defendants afterwards, but pre- NEW-YORK, vious to the last circuit, gave notice to the plaintiff that he May 1803. should, on affidavits, (the copies of which he annexed) move for a commiffion to examine witneffes, and fpecified the names of the commiffioners. At the time of ferving this notice, the defendants offered to ftipulate not to delay the cause. The If notice of applaintiff did not affent to join in the commiffion, and in a few plying for a commiffion fpedays gave the regular notice for trial. At the circuit an ap- cify names of plication was made to poftpone the cause, on the ufual affidavit commiflioners, of the want of that teftimony, to obtain which the commiffion ferved do not noticed was to be fued out. The plaintiff's counsel objecting, is concluded. then object, he he had till the next day to produce an affidavit of a former delay. Not doing this, the caufe ftood over of course. Hoffman now moved for the commiffion. Hamilton objected to its being directed to the commiffioners named. By the court. The commiffioners having been named in the notice of the motion, and the plaintiff having neither joined nor objected, is now concluded. Hamilton then argued against the application, because it was uncertain how long it would tie up the caufe, and the defendants had not entered into any ftipulation. By the court. It is unneceffary, for they take the commiffion at their peril: let it iffue. Hamilton hoped that it would be on paying the cofts of the circuit. The court ordered them, and feemed to think, that in all cafes of delay, costs should follow. Clarkson against Gifford. and the party Query whether cofts fhould not follow on appli cations for time? HARRISON moved, on the ufual affidavit, to change the In covenant of venue. feifin, the venue Evertfon. This action is founded on a fpecialty: in fuits may be changed of this fort, the court does not change the venue. Harrifon in reply. The action is on a covenant of seifin, affecting, or, as the technical phrafe is, favouring, of the realty. Motion granted. to where the lands lie. |