the claim of a foreigner residing abroad. Patorni v. Campbell, 3 Dowl. N. S., 397 12 Mees. and W., 277. Where the goods were consigned for sale by A. to his factor, who sold them to the defendant, and upon the factor becoming bankrupt, the price was claimed by A., and also by the assignees: held that the purchaser was entitled to the rule of interpleader. Johnson v. Shaw, 4 Mann. and Gr., 916. Where the defendant had purchased cattle of the plaintiff and sent a bill accepted in blank for the drawer's name for the payment, which came into the hands of third parties for valuable consideration, the plaintiff denied that it had ever been received or endorsed by him, and he had commenced an action for the price of the cattle; the holder of the bill also threatening proceedings on it against the defendant: held, that it not being shown that the cross claims were on the same subject matter, and the defendant might be liable to one or other of the parties, it was not a case within the act. Farr v. Ward, 2 Mees. and W., 844. Under this statute it was held, that the court would not grant an interpleader order on the ground that the claimant set up a right of action against the defendant in respect of the same subject matter, where it appeared that the plaintiff's claim against the defendant rested not merely upon the right of property, but also on the personal contract of the defendant. Lindsay v. Barrow, 6 C. B., 291. Thus, where A., professing to act as agent of B., obtained from C. an advance of money upon the security of plate in A.'s possession, belonging to B. After A.'s death, C. brought detinue for the plate against his executors. B. also demanded it of the executors. It was held not a case for an interpleader order. Ib. At common law, the courts would in general protect their own officers when acting bona fide in executing the process of the court (as a sheriff acting in obedience to a writ of fieri facias,) from the risk of liability to two different claimants, as where he had seized goods under a writ of fi. fa., provided he applied to the court as soon as he found himself in peril; as if upon such seizure he had notice that the party whose goods he had taken had committed an act of bankruptcy, and that assignees claimed the property, as there was a reasonable doubt whether the goods were not liable to an extent of the crown, the court would enlarge the time for returning the writ, when ruled by the plaintiff to do so, until he or the assignees had indemuified him, or had inter se settled their mutual claims, and would compel the adverse claimant to try the right, whilst the proceeding against the sheriff or officer was suspended, or upon the terms of his bringing the proceeds into court to abide the result. At common law this was the only mode of relief to the sheriff who had seized the goods in settlement, for he could not file a bill of interpleader, because, as observed by Lord Eldon, "a person cannot file a bill of interpleader who was obliged to put his case upon this, that as to some of the parties he might be a wrong-doer, as by the seizure and temporary detention of the goods." Slingsby v. Boulton, 1 Ves. and B., 334. For the same reason the court of the king's bench in England on the motion of an auctioneer who had, before notice of any third person's claim, sold under an execution by the direction of the sheriff, gave him leave to bring the proceeds into court, with a stay of actions against him. Chitty's Gen. Pr., 218, 341, and see note to section 391 of this code. Where an issue has been directed by the court to try the right of contending parties to the property in question, and the intermediate party has paid money into court to abide the event of the issue, the successful party cannot move to have the money paid out to him until final judgment has been signed. Cooper v. Lead Smelting Co., 9 Bing., 634; 2 Mo. and S., 810; S. C., 1 Dowl., 728. SECTION 123. TITLE IV. Of the place of trial of Civil Actions. Actions to be tried where subject matter situated. 123. [103.]-Actions to be tried where subject matter situated.-Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof is situated, subject to the power of the court to change the place of trial, in the cases provided by statute. 1. For the recovery of real property or of an estate or interest therein, or for the determination in any form, of such right or interest, and for injuries to real property : 2. For the partition of real property: 3. For the foreclosure of a mortgage of real property : 4. For the recovery of personal property distrained for any cause: This section and section 124 together, compose section 103 of the code of 1848. Under section 103 of the code of 1848, in an action brought to foreclose a mortgage, it appeared that the mortgaged premises were in the county of Cortland. That the money was loaned in the county of Columbia, where the mortgage, after being recorded, was delivered to the mortgagee. The county of Columbia was designated in the complaint as the place of trial. Before the time of answering expired, defendant served a written demand that the trial be had in Cortland. Plaintiff's attorneys, in reply, served a notice on defendant's attorney, insisting that Columbia was the proper county in which to try the action, and saying they should notice the cause for trial in that county. Defendant then moved to change the place of trial from Columbia to Cortland, and Mr. Justice Parker in granting the motion, said: The question is, which is the proper county for the trial of this action, under §103 [123] of the code? Plaintiff's counsel insists that he has a right to designate, as the place of trial, either the county where the cause of action arose, or that in which the subject thereof is situated. Counsel for defendant urges that the action being made local, but one county for each action could have been intended. The section to which a construction must be given, is 103 [123.] If that means that, in an action for a foreclosure of a mortgage, the plaintiff is at liberty to select, as the place of trial, either the county where the cause of action arose, or another in which the mortgage premises are situated, then the §105, [126.] becomes entirely inoperative and useless. Section 105, [126,] clearly contemplates but one "proper county" for each of the actions mentioned in section 103, [123.] Any other construction would lead to confusion and embarrassment, as it has done in this case, by leaving it doubtful which is the proper county for trial. If the plaintiff is right in his construction, then an action to recover real property is no longer local, and it may, with as much propriety, be said that the cause of action in the ejectment arose in the county where the plaintiff became invested with the title, as that in this case, the cause of action arose in the county where the money was loaned. It is not necessary, in construing §103, [123,] to hold that in each action mentioned in the subdivisions, the plaintiff is at liberty to select either as he pleases, the county where the cause of action arose, or that where the subject of the action is situated. Full effect is given to the language of that section, by holding that either the one or the other shall be made the test, according to the applicability of the test itself. And the question where the subject of the action arose would seem to be more particularly applicable to the first three subdivisions, and the other test to the remainder. Such was the law before the adoption of the code. But whatever may be the true construction of this section, I am not satisfied that the cause of action arose in Columbia, because the money was loaned there. That would certainly be the case in the action on the bond alone; but where the plaintiff seeks to foreclose the mortgage, the loan of the money must be considered in connexion with the lien on the land; and the cause of action cannot be complete without a lien in Cortland county. I think Cortland county should have been designated by the plaintiff as the place of trial. Miller v. Hall, 1 Code Rep. 113. Where a complaint, among other things prayed, that the right of the defendant to the land in question in the action, might be adjudged to be subordinate to the right of the plaintiff, and that the defendant might be ordered to give up the possession of the said land. Edwards, J., said, I think this is a case within the latter clause of section 123, subd. 1, of the code. Mairs v. Remsen, 3 Code Rep. 138. § 124. [104.]—Actions to be tried where cause of action arose. -Actions for the following causes must be tried in the county where the cause or some part thereof arose, subject to the like power of the court, to change the place of trial in the cases provided by statute: 1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offence committed on a lake, river, or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offence was committed: 2. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who by his command or in his aid, shall do anything touching the duties of such officer. This section and the preceding (section 123) are taken verbatim from section 103 of the code of 1848. These actions were made local by the revised statutes, 2 R. S. 2d ed. 395, §8, 9, ib. 277, §28-ib. 330. §3. Under the revised statutes, (2 R. S. 277, §28,) of which this section is nearly a literal transcript, it was held that the provisions respecting actions against officers, applied only to affirmative acts, and not to mere omissions or neglect of official duty. 13 Wend. 35, 266. The last mentioned provision of the revised statutes, is amended by the laws of 1843, p. 257,cap. 201, by adding thereto, the following proviso: Provided, however, that actions brought by the county or town officers of one county in their official capacity, against the county or town officers of another county in their official capacity, shall be laid in some county adjoining the county of the defendants except the county of the plaintiffs. The revised statutes (2 R. S. 330, sec. 2, sub. 3,) provide, that for the purposes of a fair and impartial trial, the court may order the issues to be tried in some other county, when it appears that a fair and impartial trial cannot be had in the county in which the venue is laid-and by sec. 3, it is provided, that in actions against public officers, or against persons specially appointed to execute the duties of such officers for any act done by them by virtue of their offices respectively, and in suits against other persons, who by the commandment of such officers, or in their aid or assistance, do any thing touching the duties of such office which are required by law to be laid in the county where the fact happened, if it shall not appear on the trial that the cause of such action arose within the county where such trial is had, the jury shall be discharged and judgment of discontinuance shall be rendered against the plaintiff, and see, 9 Wend. 208, 501. 12 ib. 217, 265, 51. § 125. [104.]-Action to be tried where parties reside.-In all other cases the action shall be tried in the county in which the parties or any of them shall reside at the commencement of the action; or if none of the parties shall reside in the State, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute. § 126. [105.] (Amended.)—Change of place of trial.-If the county designated for that purpose in the complaint, be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answering expire, demand in writing, that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this sec tion. The court may change the place of trial in the following cases: 1. When the county designated for that purpose in the complaint is not the proper county: 2. When there is reason to believe that an impartial trial cannot be had therein: 3. When the convenience of witnesses and the ends of justice would be promoted by the change. When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties, in writing duly filed, or order of the court, and the papers shall be filed or transferred accordingly. The amendment is the addition at the end, of the words in italic. 1. On changing the place of trial named in the complaint, for the reason that the county designated is not the proper county. By the "proper county" is meant a county in which one of the parties to the action resides: per Justice Sill, in Lynch v. Mosher, 4 Pr. R., 86–88. 2 Code Rep., 54. The demand should be that the trial be had in the "proper county," and where a defendant served a demand that the cause be tried in the "county of New-York," his demand was held to be irregular, and that instead of naming the county in which he desired the trial to be had, he should have asked that the cause be tried in the "proper county." Beardsley v. Dickerson, 4 Pr. R., 81. The demand must be made before the time for answering expires, and the time for answering will be deemed to expire on the service of the answer, although the answer may be put in before the expiration of the time allowed for that purpose, and the demand to have the trial in the proper county served after an answer may be disregarded. Milligan v. Brophy, 2 Code Rep., 118. But the demand may be made simultaneously with the service of the answer. Mairs v. Remsen, 3 Code Rep., 138. The demand does not of itself change the place of trial, and if such demand be only made, and the plaintiff neglect or refuse to change the place of trial to the proper county, the remedy of the defendant is to apply on the trial for a dismissal of the complaint. Hasbrouck v. McAdam, 3 Code Rep., 39. 4 Pr. R., 342. And under the former practice, where the place of trial mentioned in the declaration (the venue,) was not in the proper county the only remedy of the defendant, except he was a public officer, was by demurrer, plea in abatement, or motion for a nonsuit at the trial. 12 Wend., 265, 51, (b.) But by the present practice it seems, that if after a demand to have the place of trial mentioned in the complaiut changed to the proper county the defendant neglects or refuses to make the change, the defendant may move to have the place of trial changed, on the ground that the place of trial mentioned in the complaint is not the proper county. Mairs v. Remsen, 3 Code Rep., 138. Moore v. Gardner, 3 Code Rep., 224. 5 Pr. R., 243. Hasbrouck v. McAdam, 3 Code Rep, 39. 4 Pr. R., 342. In Hasbrouck v. McAdam, supra., Edmonds, J., held, that to change the place of trial, application must be made to the court by one party or the other, and either party may make it, and he continued by saying: the necessity of an application to the court is quite apparent; for suppose the plaintiff resides in one county, the defendant in another, and the place of trial is designated in a third-into which of the two proper counties is the place of trial to be changed? And so, if there are several defendants residing in different counties, which defendant is to have the choice? The whole thing is subject to the power of the court to change the place of trial under section 125, and its power must be invoked. The defendant by his own act cannot change it. It seems that the motion by the defendant to change the county of trial named in the complaint to the proper county, and the granting an order on such motion, will not prejudice the right of the plaintiff afterwards to move at the proper time and on the necessary affidavits to change the place of trial either for the convenience of witnesses or to obtain an impartial trial. Moore v. Gardner, 3 Code Rep., 224. 5 Pr. R., 243. In general all the defendants should unite in making the motion. 6 Wend, 508. 19 Wend., 700. The motion may be made by the one or more of several defendants. Mairs v. Remsen, 3 Code Rep., 138., and see 6 Wend., 508, 1 How. Spe., T. R., 156, 4 Hill, 62, note, laws of 1841, p. 272, sec. 1, 19 Wend., 700. But where the motion is made by one of several defendants, it must be on notice to the other defendants, ib., unless the other defendants are in default for not answering, in which case it is presumed the motion may be made without notice to them. 12 Wend., 200. And where the action is against several but some only have been served, those served may move alone and without notice to those not served. 4 Hill, 62, note. Where the motion is made by one or some of several defendants, without notice having been given to the defendants who do not move, the court will permit the motion to stand over in order that the notice may be given. Mairs v. Remsen, 3 Code Rep., 138. It seems that the question of the convenience or inconvenience of witnesses will not be taken into consideration on a motion to have the place of trial changed to the proper county; thus, where the plaintiff in an action within section 125, named Onondaga county in his complaint as the place of trial, neither party resided in that county-the defendant lived in Oneida county. The defendant duly demanded to have the place of trial changed to the proper county. The plaintiff refused to change the place of trial named in the complaint. Thereupon the defendant moved to have the place of trial named in the complaint changed to the proper county; this was |