resisted by the plaintiff on the ground that Onondaga county was most for the convenience of his witnesses. The court granted the motion, and said that the question of the convenience of witnesses was not in issue. That the plaintiff, on receipt of the demand, should have changed the place of trial named in the complaint to the proper county, and then at the proper time have moved to change the place of trial for the convenience of witnesses, and that the granting the motion then before the court, would not preclude the plaintiff from making his motion at the proper time, and on the proper affidavits to change the place of trial for the convenience of his witnesses. Moore v. Gardner, 3 Code Rep., 224.

Section 46 of the Judiciary act (Laws of 1847, p. 333,) expressly provided that the venue might be changed to the proper county with the costs of the motion, and in Northrop v. Van Deusen, (3 Code Rep., 140,) Parker, J., said that on all motions to change the place of trial to the proper county where costs were asked for by the notice, costs to abide the event will be allowed, and this whether the order were granted or refused.

Rule 3 of the supreme court rules, declares that in case the place of trial is changed for the reason that the proper county is not specified in the complaint papers on file at the time of the order making such change, shall be transferred to the county specified in such order, and all other papers in the cause shall be filed in the county so specified. See rule 3 of supreme court rules, in appendix.

By the Judiciary act of 1847, (laws of 1847, p. 333, s. 46,) which was said to be in force, notwithstanding anything in the code of 1849, (Lynch v. Mosher, 4 Pr. R., 86. 2 Code Rep., 54,) it is enacted that no motion to change the place of trial, when made by the defendant, shall be granted, unless the defendant making the same shall have made and served with the notice of such motion an affidavit of merits; and by the 48th-rule of the supreme court rules it is provided, that in addition to what has usually been stated in affidavits concerning venue, either party may state the nature of the controversy and show how his witnesses are material, and may also show where the cause of action, or the defence, or both of them arose, and these facts will be taken into consideration by the court in fixing the place of trial. Under these provisions it has been held, that the affidavit of merits on a motion by defendant to change the place of trial must state distinctly:

1st. That the defendant has fully and fairly stated the case to his counsel [in the cause,] and give the name and residence of such counsel.

2nd. That he is advised by his said counsel that he has a good and substantial defence on the merits.

3rd. That he believes he has such a defence.

Lynch v. Mosher, 4 Pr. R., 92. 2 Code Rep., 54; and an affidavit which stated that the defendant had a good defence, &c., as he is advised by his counsel, A. B., &c., and as he believes truly" was held insufficient. Ib. And see Richards v. Swetzer, 1 Code Rep., 117. 3 Pr. R., 413. The 48th rule of the supreme court does not, as has been said, require the defendant to disclose in his affidavit the matters which he intends to set up in his answer. He may do so, but if he prefers to omit it, or make only a partial disclosure of his intended defence, he may do so. Mixer v. Kuhn, 4 Pr. R., 409-412.

By rule 47 of the supreme court rules it is provided, that no order to stay proceedings for the purpose of moving to change the place of trial shall be granted, unlessit shall appear from the papers that the defendant has used due diligence in preparing the motion for the earliest practicable day after the service of the complaint. Such order shall not stay the plaintiff in putting the cause at issue, or taking any other step except giving notice and subpœnaing witnesses for the trial, without a special clause to that effect. On presenting to and filing with the officer granting the order, an affidavit showing such facts as will entitle the plaintiff, according to the settled practice of the court, to retain the place of trial, the officer shall revoke the order to stay proceedings; and the plaintiff shall give immediate notice of such revocation to the defendants' attorney.

We would here remark that the distinction between local and transitory actions, as it affects the question of venue, (the county of trial named in the complaint,) and the practice of moving to change the place of trial named in the complaint, for the reason that the county designated is not the proper county, seems to us still to exist, and to materially affect the practice in relation to such motions. If, under the former practice, in a local action, the venue was laid in the wrong county, the plaintiff

might be nonsuited on the trial. The Judiciary act of 1847, (Laws of 1847, p. 332,) by section 45 defined which were local, and by section 46 which were transitory actions. The 45th section is now superseded by sections 123 and 124 of this code, and the said section 46 is still in force. (Lynch v. Mosher, 4 Pr. R., 86. 2 Code Rep. 54.) That section leaves the former law untouched as to the actions therein, and in sections 123 and 124 of this code declared to be local, and in which a plaintiff might be nonsuited if the venue was laid in the wrong county, but provided, that as to the actions rendered transitory by "this section," the plaintiff should not be nonsuited for an error in the venue; but when the venue was not in the proper county, the defendant might move in the manner therein provided to have the venue changed to the proper county. The code then, by section 126, declared that in all actions, local as well as transitory, the actions might be tried in the county designated as the place of trial in the complaint, unless the plaintiff, before the time for answering expire, demand in writing that the trial be had in the proper county. With regard, therefore, to the actions mentioned in the 123d and 124th sections, they stand on a different footing from the other actions mentioned in section 126. As to the former, the law appears to be, as thus: if the place of trial named in the complaint be not the proper county, the plaintiff may be nonsuited, but the defendant shall not be allowed to move to nonsuit, unless, before answering, he give notice to the plaintiff of his intention; and the demand by the defendant to have the place of trial mentioned in the complaint, changed to the proper county, is, in effect, a notice to the plaintiff that the county named is not the proper county, and that so the defendant will insist on the trial. The question as to whether or not the place of trial named in the complaint is the proper county, cannot, in many cases, be de ermined until the plaintiff has closed his case on the trial; and a motion to change the place of trial named in the complaint, to the proper county, must, in many cases, involve a trial of the action upon affidavits. If the plaintiff is satisfied that the place of trial named in the complaint is the proper county, and is willing to incur the risk of being nonsuited on the trial, there can be no reason why the defendant shor'd, even if he may, (12 Wend. 217, 265, 51,) take the trouble and risk of making a motion to set him right, he can derive no benefit, and may lose an advantage. Because, if he has a right to have the place of trial changed for the convenience of his witnesses, or because he cannot obtain an impartial trial in the county named in the complaint as the place of trial, he is not precluded from obtaining an order for that purpose, merely by the refusal of the plaintiff to comply with the demand to change the place of trial to the proper county, and after obtaining such o der, the defendant will retain the right to move to nonsuit the plaintiff, if, on the close of his case at the trial, it appear by the evidence adduced that the county named in the complaint is not the proper county.

Except in requiring that the defendant must make a demand, before answer, to have the place of trial named in the complaint changed, or otherwise he will be precluded from moving to nonsuit on he trial, on the ground that the place of trial named in the complaint is not the proper couniv, the practice appears to differ in no respect from the case where, under the former practice, the venue was laid in the wrong county.

We take the liberty here to remark, that much of the confusion that has arisen in the practice subsequent to the passage of the code, has been occasioned by attributing to that statute a more extensive operation than in effect it has. On this particular point, the confusion has arisen from not keeping in view the distinction between a change of the place of trial named in the complaint, (the venue) to the proper county, and a change of the place of trial merely, (not the venue,) to meet the convenience of witnesses, or to obtain an impartial trial.

By the former practice the plaintiff could not move to change the venue (the place of trial named in the complaint,) 16 Johns. R., 149, but if, before the trial, he discovered that he had laid his venue in the wrong county, (named the wrong county as the place of trial in the complaint,) he might amend, as of course. Ib. and 7 Cow. 164, (a) and now if by the demand of the defendant or otherwise, the plaintiff is made aware that the county named by him in his complaint is not the proper ccunty, and he is desirous of inserting the proper county, he may so amend, of course, at any time within the time allowed by section 172, for amendments of course, and if he permit that time to elapse, and afterwards desires to change the place of trial named in the complaint, he should make a motion for leave to amend his complaint in that respect.

Entertaining this view of this provision, we see no reason why the practitioner, in all actions within sections 123 and 124,where concerned for a defendant, may not serve before or with his answer a demand to have the place of trial named in the complaint changed to the proper county; by this means he will preserve the possibility of obtaining a nonsuit, if on the trial any fact should be elicited in the progress of the plaintiff's case, which shows that the county of trial named in the complaint is not the proper county. If the plaintiff considers the county named as the proper county, he disregards the demand, the defendant takes no further step, but he has thereby saved his right to move to non-suit on the trial, for the reason that the county of trial named in the complaint is not the proper county.

2. As to changing the place of trial for the convenience of witnesses, or because an impartial trial cannot be had in the county designated in the complaint as the place of trial.

The distinction which was formerly made between actions ex contractu, and actions ex delicto, in respect to granting and refusing motions to change the place of 'trial, is no longer recognized.

Where there are several defendants, they should all join in the motion to change the place of trial (6 Wend. 508, 1 How. S. T. R. 156;) unless some have suffered a default, in which case the others may move alone, 12 Wend. 200. So where the action is, in form, against several, and process has been served upon some only, the defendants served may make the motion. 4 Hill, 62, note.

And in a joint action against the several parties to a bill or note, under section 120, the motion may be made by any one of the defendants, (Laws of 1841, p. 272, § 1;) although before the passage of the act last referred to, the rule was otherwise. 19 Wend. 700, see 4 Hill, 62, note.

The plaintiff cannot move to change the place of trial, (16 Johns. R., 149,) but he may change it by amending his complaint of course. Id. 7 Cowen, 164, (a) or on

motion for leave to amend.

Motion when to be made.-On a motion to change the place of trial for the con. venience of witnesses, it was held that such motion need not be made till after issue joined, but must be made the first opportunity after issue joined, and if the case would be thrown over a circuit in consequence of such laches it is a sufficient reason to deny the motion. Lynch v. Mosher, 4 Pr. R., 86, and per Sill, J., until the answer comes in, the plaintiff cannot safely swear that a single witness will be necessary for him on the trial, and when new matter is set up in the answer the defendant cannot know, nor can his counsel advise him what witnesses will be needed for the defence. It seems to be a necessary result of the change in the system of pleading, that the defendant cannot determine whether a change of the place of trial will be necessary, nor can the plaintiff determine whether he should oppose it until all the pleadings in the action are served. Ib. and see, Barnard v. Wheeler, 3 Pr. R. 71, 72.

Where a defendant moves to change the place of trial after answer and before the plaintiff's time to reply has expired, if the plaintiff shows that the answer contains new and material matter, and that he cannot then determine what witnesses may be required upon the issues, the motion must be denied without prejudice to its renewal after the coming in of the reply. Myers v. Feeter, 4 Pr. R., 240, and where the motion was made after answer and before a reply, on its being objected that the motion could not be made until after issue joined, it appeared that the answer denied nearly all the material allegations in the complaint, and that the time to reply had expired before the motion was made, and it did not appear that the time to reply had been extended, and the court entertained the motion. Beardsly v. Dickerson, 4 Pr. R. 81.

In Clark v. Pettibone, 2 Code Rep., 78, defendants moved to change the place of trial. The plaintiff opposed the motion on an affidavit, showing that no answer was received before the notice of the motion-after argument, Edmonds, J., held, that the court had no power to change the place of trial until after issue joined. The motion was denied. The same question was decided the same way by Selden, J., in Hartmann v. Spencer, 5 Pr. R. 135, and by Sill, J., at a general term, with the concurrence of Mullett, Marvin and Hoyt, JJ., in Mizer v. Kuhn, 4 Pr. R., 409.

On the other hand, Williard, J., referring to the cases of Barnard v. Wheeler, and Lynch. Mosher, supra, decided that the motion might be made before issue joined, and such was the opinion of Hand, J., in Myers v. Feeter, 4 Pr. R. 240, subject

however, to exceptions, of which that case was one. We think, however, that both on authority and on principle, the more consistent practice is not to move until the issue is joined, and the contrary opinions are based on the assumption that the parties can foresee what will be the issue in the cause.

Staying proceedings for the purpose of motion.-The defendant, if circumstances require it, may obtain an order to stay the proceedings for the purpose of making the motion. But no such order will be granted, unless it shall appear from the papers, that the defendant has used due diligence in preparing the motion for the earliest practicable day after the service of the complaint. Rule 47. And the order, if granted, will not stay the plaintiff in putting the cause at issue, or taking any other step, except giving notice of trial, and subpoenaing witnesses. Id. By the former practice, the defendant had to serve the order before the cause was noticed for trial, and before the plaintiff's witnesses were subpoenaed, otherwise the plaintiff might disregard the order and take an inquest. 6 Hill., 380.

Revoking order to stay proceedings-.The plaintiff may get the order to stay proceedings revoked, by presenting to, and filing with the officer by whom it was granted, an affidavit, showing such facts as will entitle him, according to the practice of the court, to retain the place of trial. Rule 47. And he must give immediate notice of such revocation to the defendants' attorney. Rule 47. But he cannot treat the order obtained by the defendant as a nullity, on the ground that the papers on which it was procured fail to conform to the requisites demanded by the 47th rule, in respect to delay, although the effect of the order be, to throw the cause over both the circuit in the county designated in the complaint as the county of trial, and that in the county to which it is proposed to be changed. 22 Wend. 633.

The motion. The motion to change the venue is founded on an affidavit, to the form of which particular attention should be paid, and which must, in general, be made by the defendant himself, though under special circumstances, set forth in the affidavit, it has been held sufficient when made by his attorney in the action. 4 Hill, 64, note.

If the motion is grounded on the convenience of witnesses, the affidavit should state the name of the witnesses residing in the county, to which the defendant seeks to change the venue, 6 Cowen, 389; and their residences, 1 Hill, 671, 3 Id. 445 ; stating the town, village, or particular place of residence, in addition to the county. 1 How. Spe. T. R., 195; and that each, and every of them is material to the defence, as the defendant is advised by counsel, and verily believes. 3 Wend. 425, 9 Id. 431; 1 Hill, 668; and without the benefit of the testimony of each and every of them, he caunot safely proceed to trial, as he is advised by counsel, and verily believes. 3 Wend. 425, 9 Id. 431; that he has fully and fairly stated the case to his counsel, giving the name and residence of such counsel, Rule 39; and has fully and fairly disclosed to him the facts which he expects to prove by each and every of his witnesses, 9 Wend. 10, 1 How. Spe. T. R., 55, 70, 165; 1 Hill, 668; and that he has a good and substantial defence on the merits, 1 How. Spe. T. R. 162, as he is advised by his said counsel, and verily believes. 4 Hill, 64, 66. 1 How. Spe. T. R. 62. The affidavit should also state the name of the county designated in the complaint as the county of trial; 1 How. Spe. T. R. 184; 1 Hill, 668; and if not made by all the defendants, it should show the reason why it is not so made. 1 How. Spe. T. R. 156.

In addition to what has usually been stated in affidavits concerning venue, either party may state the nature of the controversy, and show how his witnesses are material; and may also show where the cause of action, or the defence, or both of them, arose; and those facts will be taken into consideration by the court, in fixing the place for trial. Rule 48.

The county in which the witnesses reside, rather than the distance they will have to travel, must govern on motions to change the place of trial. People v. Wright, 3 Code Rep., 75. 5 Pr. R. 23.

In Hull v. Hull, 1 Hill, 671, a motion was made to change the venue from Allegany to Cattaraugus, on an affidavit that the defendant had fifteen witnesses in the latter county. It was shown in opposition to the motion, that the defendants' witnesses resided nearer to the court-house in Allegany than to the court-house in Cattaraugus; viz., 25 miles from the former and 27 miles from the latter. But the court granted the motion, and Bronson, J., said, "On a question of venue, we look to the county in which the witnesses reside, rather than the distance they will have

to travel. As a general rule, the convenience of witnesses will be best consulted by having the trial in the county where they reside. That course will be less likely to disturb their social and business relations than calling them to a foreign county."

This case was cited and approved by Parker, J., in People v. Wright, supra. See, Beardsley v. Dickerson, 4 Pr. R. 81.

Opposing the motion. The plaintiff may resist the motion by an affidavit showing material witnesses, 1 How. Spe. T. R. 56; residing in the county named in the -complaint, as the county of trial. 2 Caines' R., 374. 3 Id. 95. 2 Johns. R. 481. 7 Cowen, 102. 19 Wend. 10. But he must swear unqualifiedly, that he has witnesses in or near the county named in the complaint as the county of trial of an equal number with those of the defendant, or a greater number, or the place of trial will be changed. 12 Wend. 294. And the residence of a greater number of witnesses in an adjoining State adjacent to the place of trial named in the complaint is not sufficient to retain the place of trial. 2 Wend. 282. 6 Id. 541. 4 Hill, 68, note.

And it is no answer to a motion to change the place of trial, that by granting it, the plaintiff will lose a trial or a term, where the defendant is not chargeable with laches; and even where he is so chargeable, his neglect must be such as to produce the delay, or the motion will be granted. Lynch v. Mosher, 4. Pr. R., 86, 22 Wend. 615. Formerly it was no answer to the motion that the cause was at issue on demurrer only. 2 Hill, 382, but now see Gould v. Chapin, 2 Code Rep., 107. And where on a motion to change the venue from the county of O. to the county of C., the defendant's affidavit stated that the action was brought to recover for services as attorney and counsel, rendered by the plaintiff while residing in the county of C., that the defendant had twenty witnesses in the latter county, and that, if the plaintiff should claim to have more than one witness (naming him) in the county of O., the others could only be material for the purpose of proving the value of the services for which the action was brought, which could as well be proved by witnesses residing in the county of C., and the plaintiff in opposition to the motion, swore to twentyfive witnesses in the county of O., ten of whom were attorneys and counsellors at daw, but omitted to answer the matters specially set forth in the defendant's affidavit, the motion was granted. 5 Hill, 509. 1 How. Spe. T. R. 73. The court in deciding the motion will be governed by the convenience of witnesses. 4 Wend. 203, 9 Id. 451. 1 Hill, 668, 671. And where the plaintiff outnumbers the defendant in witnesses, (12 Wend. 294. 1 Hill, 668, 671,) or swears to an equal number, (5 Cowen, 414; 12 Wend, 294,) the motion will be denied. But not under all circumstances. 5 Hill, 509. 1 How, Spe. T. R. 73. So where it is clear that the defendant's object is merely delay, (12 Wend. 293, 22 Id. 615. 10 Id. 571,) or where his affidavit is defective, (19 Wend. 617; 9 Id. 431 ; 22 Id. 636 ; 2 Hill, 359.) the motion will be denied.

And where, in a common action of assumpsit, the defendant swore to seventy-eight witnesses, as material to his defence, it was considered a fraud upon the court, the nature of the action not being fully explained, to satisfy the court that the number of witnesses was necessary. 1 How. Spe. T. R. 122. 4 Hill, 536.

Where after service of papers for a motion to change the venue, together with an order to stay proceedings, the plaintiff amended his declaration by changing the venue to another county, and it appeared on the motion, that the plaintiff had a sufficient number of witnesses to retain the venue in the latter county; and that the defendant had had time to serve new papers since the amendment, but omitted to do so, the motion was denied. 1 Hill, 374. And where, on receiving notice of the motion, the plaintiff agreed to change the venue, according to the wish of the defendand, provided he would accept short notice of trial, the motion was denied, as defendant could not show it to be impossible for him to prepare for trial on short notice. 9 Wendell, 498. So where the defendant after service of his papers, and before the motion was actually made, suffered a default for not pleading, this was held to defeat the application, even though he obtained and served an order staying proceedings. 4 Hill, 69, note.

Where the ground of the motion is that a fair and impartial trial cannot be had in the county named in the complaint as the place of trial, this fact must be made to appear to the court very conclusively, in order to induce them to change the venue. Accordingly, the motion was refused where it was founded merely on the fact that the sheriff of the county was a party to the suit, (2 Caines' R. 46,) or that the corporation of the city of New-York was a party, where the venue was laid in that