Morgan v. Lyon

12 Wend. 265

Opinion

By the Court,

Nelson, J.

The question whether the action be or be not local, cannot be agitated on this motion. If it appear on the face of the declaration that the action is local and the venue is laid in a wrong county, the defendant may demur . jf ^ joes not s0 appear, he may plead the fact in abatement, or avail himself of the mistake by nonsuiting the P^a’nt^ at trial. 1 Chitty’s Plead. 284. 12 Wendell, 51. Where a public officer is sued foracts done by him by virtue of his office, and he qsks to have the venue changed to the county where the fact complained of happened, the venue ought to be changed ; but a party, not within the purview of the statutes declaring certain actions local, is not entitled to urge a change of venue on the ground of the action being local, but must resort to one or other of the remedies above suggested.

Motion denied.