CASES 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 THIS NEW-YORK, In an action for county, that the which the fuit 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 stating the cause of action (if any) to have arisen in the county of Montgomery, an efcape from and adding that the defendant's witneffes, who were numerous, Pr prifon in one refided in that county, moved to change the venue from New- judgment on York to Montgomery. It was then contended, that this ac- against the prition was so far local that the plaintiff was bound to lay the foner was foundvenue in the county where the prisoner had escaped: but the in another councourt was of opinion, that the fuit was tranfitory; that the ty, is not fuch a plaintiffs had a right to lay the venue where they pleafed in makes the acthe first instance, and the defendant enjoyed the common the judgment is privilege of changing it on the ufual affidavit. On that a recorded. Querule was made that the venue fhould be changed from the ry, if the county city of New-York to Montgomery, unless the plaintiffs, within happens be not twenty days, fhould ftipulate to give, on the trial, material the proper county for the venue? evidence arifing in the city of New-York. The plaintiffs did ftipulate accordingly, and transmitted a notice of it to the B fubftratum as tion local where where an escape 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 pursuit and recaption before action brought. V. Hildreth. *See Mellor v. E. 387. Pink I Riggs now moved that the plaintiff be difcharged 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, secondly, feld, ibid. 647. 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 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 plaintiffs 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 fheriffs 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 muft be done in his own county, or at leaft the law fuppofes them done there: but the court faid, the fheriff 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. 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 fheriff's, and therefore not like the cafe 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 malicioufly outlawing the plaintiff might be laid in the county where the capias utlagatum was executed; and not neceffarily in Middlefex, 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 difclosed. 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 muft 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. in an action for an escape, unless particularly circumftanced, many reasons occur why a trial fhould be had in the county from which the prifoner fled. A fheriff ought not lightly to be called out of his county: the witneffes alfo must, generally fpeaking, be there; nor fhould a public officer be fubject to the oppreffion and expense of attending with his witneffes at a distance. Yet we are now called on, not only to function So * See I Lev. 114. Berwick v. Ew |