Low v. Hallett — 2 Cai. 374

Majority

p. 374

Low against Hallett.

Headnote

In an action for use and occupation, the court "will change the venue to tho county where the house is, if all the defendant’s witnesses reside there and the plaintiff do not show he has any, as the action is founded on privity of contract, and is transitory in its nature.

ON a motion to change tbe venue from New York to Ontario, in an action for nse and occupation, the defendant swore all his witnesses resided in the latter county, where the house was situated.

Hoffman resisted it because the action was transitory, and .on an affidavit by the plaintiff, stating his case to rest on written receipts, and an agreement executed in New York.

Take the effect of your application. The papers may be more easily transferred to Ontario, than the witnesses carried to New York. The plaintiff does not show he has a single witness where his venue is laid, and the action being founded in privity of contract, not of estate, is of course transitory.

Motion granted.