Alder v. Griner

13 Johns. 449

• Court: New York Supreme Court
• Decided: October 15, 1816
• Status: Published

Opinion

Spencer, J.,

delivered the opinion ñf,the court. The instrument given'in evidence is dated at Boston, and there is no venue. in (he body of the declaration; in the margin there are- the words, “ city and county of New York"

The rule as to venues, is,, that when a transitory matter lias occurred abroad, it may-, in general, be stated to have occur*' red in an English county, without noticing the place where it, really happened ; but if the real place abroad be stated, which is necessary when the instrument declared on bears date.there, it should be shown under a scilicet,, that it happened, in an Eng-, Ush-county. The reason and effect of this rule is given by Lord Mansfield, in Fabrigas v. Mostyn, (Cowp. 176.,) thus,, “'if a declaration state a specialty to have been made at Westminister, -in Middlesex, andón producing the deed,, it bears date in Bengal, the action is gone, because it is süch a variance be1 tween the deed and/the declaration as makes it appear to be •a different instrument/’

After a trial, a bad venue, or the want of one, is -cured by. ■ the statute of jeofails.; and the venue in the.margin will help, but not hurt, (3 Term Rep. 387.)

Had the declaration, in this case,, stated the deed to have been .made at New York, we should., probably,, have been bound by authority, whatever may have been.our private opinions as •to the wisdom of the rule, tó set aside ¡ihe verdict bn the ground of variance ;• but it is not alleged that the deed was executed in New York i the words in the margin are not such a direct averment of the fact as to produce a variance; the place stated in the margin is intended for the venue, or place from whence the jury are to come, but not as a matter of local do* SCpiptidp of the execution of the deed!,' (11 East, 118.)

Motipn denied?