Zobieskie v. Bauder — 1 Cai. 487

Majority

p. 608

Zobieskie against Bauder.

Headnote

The court will not change the venue on an affidavit saying there is a party spirit in a county against the person applying.

This was a motion by the defendant to ctiange the venue, in an action of slander, from the county of Albany [*488] to *that of Montgomery, on an affidavit that “the cause of action arose in the latter county, and not elsewhere, and that the attendance of a large number of witnesses, on his part, would be necessary at the trial, all of whom resided in Montgomery and its contiguous county, Herkimer.”

p. 609

The plaintiff, to retain the venue where he had laid it, swore, “ that some of the slanderous words, for which he instituted this suit, were spoken of him, as he verily believes, and has been informed, in relation to his public capacity, as canvasser of an election for senators for the western district; that the defendant is classed among those whose political opinions are different from his own; and that, on account of the violent party spirit which prevails in Montgomery, he believes an impartial trial cannot be there had.”

We do not think the plaintiff entitled to retain the venue in Albany. The court will not presume that an impartial trial cannot be had, merely because the parties differ in politics, and a violent party spirit prevails in Montgomery. If the plaintiff had stated that the inhabitants of that country had generally prejudged the question; or were particularly interested in it; or that, for certain reasons, they entertained a prejudice against him; or, that the defendant was a person of uncommon influence, it might have altered the case. It-does not follow, that because some of the words were spoken of him as canvasser of an election for the western district, that the inhabitants of Montgomery will be more partial than those of any other county, for in the event of such an election, the citizens of the whole state have nearly the same interest. If violence of party spirit (which in free governments will always rise to a certain degree) be a reason for changing a vemce between suitors of various political sentiments, there will be no end to applications of this kind, and after all, where will a county be found entirely free of it ? We hope that no difference of this kind will ever influence deliberations within a court of justice, or prevent the decision of any controversy on its real merits.^[1]

Venue changed.

(a) (a) That the disposition of the inhabitants of the county is unfavorable to turnpikes, is no cause for changing the venue in a turnpike cause. New *610 Windsor Turnpike Company, v. Wilson, 3 Caines’ Rep. 127 . Tjjpr in a cause by a corporation of a city, the interest of the citizens, merely as being such; Corporation of New York v. Dawson, Caines’ Prac. 129, nor that one of the parties to the suit is sheriff of the county. Baker & Sloane v. Sleight, 2 Caines’ Rep. 46 . See ante, p. 4, n. (a), and 123, n. (a). See also Messenger v. Holmes, 12 Wend. 203 ; The People v. Webb, 1 Hill, 179 ; The People v. Vermilgea, 7 Cow. 108 ; Bowman v. Ely, 2 Wend. 250 ; Scott v. Gibbs, 2 J. C. 116.