Majority
p. 541Keep against Tyler.
Headnote
On obtam™^°v* the defenp,™1 *¡ ^2 *p with„serving a certified copy n the plain-done, the plainJjf Consider ^°0or!g¿aal place of trial.
A mere noisnotsufiacient.
Motion for judgment as in case of nonsuit. The venue was laid in the county of Cortland; but, at the last February term, was changed, by rule of this Court, to the county of Delaware, and notice of the rule, but not a certified copy, served on the agent of the plaintiff’s attornev. . V , The default, on which the present motion was founded, was the not trying in Delaware.
The motion was opposed, on the ground that a certified copy of the rule had not been served; and Thompson v. Douglass, (2 John. Cas. 226,) and Smith v. Sharp, 13 John. Rep. 466 , were relied on for this.
Sherwood & Parker, for the motion.
Moss & Gray, contra.
The mere granting the motion did not work a change of the venue. The practice is to follow this with the service of a certified copy of the rule. An ordinary notice seems not to be sufficient. Till the proper notice, the plaintiff may disregard the rule, and consider the venue as remaining in Cortland.
Motion denied.