Ross v. Lown

8 Johns. 354

• Court: New York Supreme Court
• Decided: August 15, 1811
• Status: Published

Opinion

Per Curiam.

In Manning v. Downing, (2 Johns. Rep. 453.) the riile on the subject of changing the venue was laid down, and the court said, that they had an equitable power Over venues, and would exercise it, só as to promote the convenience of suitors and save expense to the parties ; and that in actions arising on contracts, they Would not permit the plaintiff, by a stipulation, to retain the venue, when the defendant would satisfy the court that he had witnesses material to his defence in a distant county; and, accordingly, in that case, the defendant having sworn that he had several witnesses residing in Columbia, material to his defence, the court required the plaintiff, in order to retain the venue, to satisfy them by affidavit, that he had material witnesses in New-York.

The present case is in trespass de bonis asportatis, and we have not, as yet, extended the rule laid down in Manning v. Downing, to such a case. By the practice of the king’s bench, on the present affidavit, the defendant would be entitled to change the venue, unless the plaintiff stipulated to give material evidence, arising in Onondaga; and without such stipulation, the venue ought to be retained where it now is, in Saratoga. The place where the goods were taken, must, in all probability, be the place where the witnesses reside, and in that county the trial ought to be; not on the exploded notion for the purpose of having the cause tried by a jury of the vicinage, but because the convenience of the parties will be promoted by it, and there will be a saving of expense,, in regard to witnesses.

Unless, therefore, the plaintiff will stipulate to give material evidence arising in Onondaga, the motion to carry back the venue to that county must be denied.