Duryee v. Orcott

9 Johns. 248

Opinion

Per Curiam.

In Ross v. Lown, (8 Johns. Rep. 354.) the court said, that thg rule laid down in Manning v. Downing, (2 Johns. Rep. 453.) had not been extended to a case for trespass tie bonis asportatis ; and in that case, we adopted the practice of the king’s bench, in England, and required the plaintiff to stipulate to give material evidence arising in Onondaga, to entitle him to retain the venue there, it appearing that the plaintiff had two witnesses residing in Onondaga, and the defendant four in Saratoga, in which latter county the cause of action arose.

There are transitory actions, in which the venue is altogether optional with the plaintiff. In this class we have placed, generally, all actions arising on contract. It includes, also, actions

* arising beyond sea, or out of the state, for libels dispersed in several counties, for escapes, or false returns, against a carrier, on a specialty, note, or bill of exchange, and wherever the cause of action is not wholly, or necessarily, confined to a single county. In these cases, the venue will not be changed, but upon special grounds, as where the witnesses of both parties reside in the county to which the defendant wishes to bring the venue. If the plaintiff’s witnesses reside in the county in which he has laid the venue, unless there is a great and striking preponderance against him, the venue will not be changed.

In trover, the plaintiff has not an option as to the venue. The place where the cause of action arose is, prima facie, the place where the venue ought to be'; and if the defendant shows, by affidavit, where the cause of action arose, exclusively, and that he has witnesses material to his defence residing in that county, he has a right to have the venue there. The plaintiff cannot devest him of this right, but by stipulating to give evidence arising in the county where he has laid the venue, and, in addition to that, stating, by affidavit, that he has witnesses material to his cause residing in that county. In the present case, the plaintiff having witnesses in the county of Dutchess, let him stipulate to give evidence arising in that county, and let the venue be carried back there.

Buie accordingly.

1 Tidd's Pr. 174.