Jackson ex dem. Dains v. Dains — 2 Cow. 526

Majority

p. 526

Jackson, ex dem. Dains and others, against Dains.

Headnote

The usual actUffividingha county, that the division shall not affect any suit or action, &c. (Vide sess. 46, ch. 30, s. 2, in relation to Yates county,) applies to the venue, and retains the place of trial in the old county.

Ejectment for land situate in the county of Yates. The acti°n was commenced while Yates was a part of Ontario,

p. 527

and the venue was laid in the latter county. The lessors if the plaintiff, and the defendant, reside in Yates county, and the defendant has several material witnesses residing there. On an affidavit of these facts, and that the defendant has a good defence on the merits, as advised, &c.

W. M. Oliver,

moved to change the venue from the county of Ontario, to the county of Yates.

A. P. Vosburgh, contra,

relied on the first proviso in the second section of the act to erect the county of Yates, (sess. 46, ch. 30,) which declares that nothing contained in that act shall be construed to affect any suit or action, in any Court whatsoever, commenced at the time of its passage.

Oliver, in reply,

said the object of the proviso referred to, was merely to prevent any suit being discontinued by the separation ; and it will be satisfied by giving it this construction.

We think differently; and that the proviso means that no action shall be affected by the change, as to the place of trial, as well as in every other respect.

Motion denied.