VENUE. SHEPHEARD against HALL. 1817. 17th Nov. MARRIOTT moved to change the venue in an Venue changed action of assault. THE COURT much doubted whether it was allowed in assault, and at first granted a rule nisi. But Gurney, amicus curiæ, having stated that it had been done in actions for criminal conversation, and libel. (See Gerard v. Hodge, 10 East, 32. 3 Term Rep. 30. 1 Brod. and Bingh. 299.) THE COURT, after consideration, informed Marriott that he might take his rule absolute in the first in stance. SP ANONYMOUS. was PANKIE moved to discharge a rule to change the venue. The action was by original against three defendants, and the motion to change the venue by one, the other two having suffered judgment by default. There were many cases which decide (a), that where there are more than one defendant, the venue cannot be changed by one, because he cannot oblige the others to undertake that error shall not be assigned for want of an original. in action for assault, rule absolute in first instance. 1816. 24th May. A motion to change the venue cannot be made by one of three defend ants without the consent of the other two, notwithstand ing they had suffered judg ment by default, and col luded with the plaintiff, as it was suggested, to withhold their con (a) Vide Braddeley and others v. Rippon and others, 5 Taunt. 87. Groves v. Thackery, id. 631, in C. P. that venue cannot be changed into sent (a). county palatine, in an action by original, at the instance of one only out of several defendants. 1816. ANONYMOUS. Littledale shewed cause, and suggested that the consent of the two other defendants could not be obtained, because they had colluded with the plaintiff. Rule Nisi. On the 27th May, the rule was made absolute, the consent of the other defendants being considered absolutely necessary. 1815. 29th April, the writ ma terial evidence, ANONYMOUS. The issuing of ADAMS moved to change the venue from Middlesex to Northamptonshire. The action was against in an action for the sheriff for an escape. The affidavit did not state whether the escape was on mesne or final process. an escape, so as changed from Middlesex to Northamptonshire on a rule nisi. DAMPIER J. The issuing of the writ must be material evidence here. They will be able to bring the venue back. But you may have at that risk a rule nisi. In an action for infringing a patent, the venue cannot be changed from Middlesex to any other county, the patent being the substratum of the action. Cameron v. Gray, 6 T. R. 363. Kensington v. Churtles, 2 M. and S. 36. 1814. 20th May. Rule nisi granted to change ANONYMOUS. ITTLEDALE moved for a rule nisi, to change the venue from London to York. The action was don to York, four witnesses living at Leeds and only one of the facts occurring in London(a). venue from Lon (a) But see that the venue cannot in general be changed in an action on a bill of exchange, &c. Tidd, 633, and 1 T. R. 571, argued. And it has been held in C. P. that in an action by an attorney for an escape, it is not a sufficient ground for deviating from the general rule not to change the venue in such a case, that the witnesses on both sides reside in the county to which the venue is wished to be changed. 2 Marsh. 152. The Court however will sometimes on a special ground grant a rule for changing the venue, although it is laid in the proper county. See Tidd, 635, and post, on a bill of exchange; and he moved on an affidavit, that four witnesses were at Leeds, and only one fact occurred in London, which was admitted. And the COURT, under the special circumstances of the case, granted a Rule Nisi. even in an action on a specialty. 1 T. R. 781; and Anon. June 20, 1816, where the venue was changed in an action of debt on bond, on an affidavit that all the witnesses lived in the county to which the venue was desired to be altered. 1814. ANONYMOUS, PARK ATKINSON against Sadler. DARKE moved to change the venue from York to London, the cause of action having accrued in the river Humber, in the county of York, on the ground that several material witnesses were in the Greenland trade, and would be absent at the time of the York assizes. 1814. 28th June. Rule nisi granted to change the venue from York witnesses being Greenland fishermen, who would be absent at the time to London, the of the York as THE COURT granted a rule nisi, to shew cause be- sizes. fore a Judge at Chambers. ANONYMOUS. 1816. 12th Feb. refuse a rule to tion on a breach PULLER shewed cause against a rule to change The Court will the venue in this case. The action being in co- change the venant, he contended that it could not be done, unless venue in an acon some strong grounds. Hodinott v. Cox, 8 East, of covenant, though there 268. The venue was sought to be changed from was a view Gloucester to Somersetshire. An application had been made for a view to inspect a partly built house, on the Gloucester side of Bristol. An old witness also who was resident at the same place, could not be removed. LORD ELLEN BOROUGH C. J. Unless there is some prayed, because no preponderating circum stances were shewn to make 1816. ANONYMOUS. preponderating circumstance, we shall not take away from the plaintiff the option which he has of laying the venue in any county he may think proper. Gifford admitted that the view was the only point upon which he could rely; and that was not answered by the other side. LORD ELLENBOROUGH C.J. said, that if the Court granted the rule, they would have to distinguish every case merely on the ground of a view. Rule discharged. Puller, for plaintiff. Gifford, for defendant. 1816. 19th Nov. A penal action WHITEHEAD against WYNNE. for non-resi-ADDY stated dence must be brought in the TADDY stated that this case arose on a writ of error from the Common Pleas, on a question county in which whether the venue had been properly laid. The action was brought under the statute 43 Geo. 3, c. 84, s. 12, for non-residence, and he contended that it should have been brought in the proper county. 31 Eliz. c. 5, s. 7. the living is situated. Heath, contra, (after noticing that the 21 Jac. 1. c. 4, did not extend to subsequent statutes; upon which LORD ELLENBOROUGH C. J. said, that it was settled by the case of Barber v. Tilson, 3 Mau. & Selw. 429, that a penal action must be brought in the proper county, by virtue of the 31 Eliz. c. 5), referred to the case of Grimston v. Molineux, Hobart. 251, and the marginal note there, as well as the index, and said the question was, whether the act charged here was a mis-feazance or non-feazance. The statute 31 Eliz. c. 5, s. 2, speaks only of offences done or committed, and the present action, which is founded on the stat. 43 Geo. 3, c. 84, s. 12, against the defendant for wilfully absenting himself from his benefice, is peculiarly for an act of nonfeazance, and not of misfeazance, if any distinction exist between the two terms. But LORD ELLENBOROUGH C. J. said, that the case in Hobart seemed to be only a queried case, and the marginal note was merely an observation of the reporter; and that the case stated in the index, tit. "Recusancy," was still less maintainable; and also that he could not rely upon the authority of an index, so as to extend the author's meaning beyond the import of the body of the work. It was monstrous that the plaintiff should take a clergyman from Cumberland down to Cornwall, to try a fact of this kind. And he likened the case to that of a person liable to the bankrupt laws, leaving his dwelling house. BAYLEY J. referred to Barber v. Tilson, 3 M. and S.429 (a), the doubt in which arose upon the statute of James 1; before that case, the general words of the statute of Eliz. were not sufficiently adverted to; but it was now clear, that penal actions must be brought in the proper county. ABBOTT J. read the 7th section of the stat. of Eliz. and observed, that it alluded particularly to certain cases of non-feazance, from which a clear inference arose, that acts of that kind were within the scope and purview of the statute. It was fit that the action should be brought where the cause of action arose ; for it would be a great hardship to the defendants if (a) See 1 Marsh. 321, in note. 4 East, 385. 1816. WHITEHEAD against WYNNE. |