Majority
p. 45Prescott against Roberts, impleaded with Hibbard. UTICA, Aug. 1826.
Headnote
The venue in this cause was at first laid in the county of Onondaga ; and was noticed for trial and inquest there, at the last March circuit. To prevent an inquest, and put the plaintiff to the regular course of the calendar, the defendant filed with the circuit clerk the usual affidavit of merits; and served a copy on the plaintiff ⅛ attorney, The cause not being then tried, the venue was changed to the county of Rensselaer, by stipulation between the parof^menfs^to prevent an in- cient, 'though the cjU3f. be noticed for tria And'iffited attorney, for a circuit in one county, it is sufficient, though the venue be afterwards changed to another county, and the cauye be tried in the latter.
p. 46
ties. The plaintiff then noticed the cause for trial and in'-* qUest? at the last June circuit in Rensselaer, when an inquest was taken against the defendant in the cause out of ⅛ order on the calendar ; no new affidavit of merits being filed and served by the defendant, in order to prevent this.
A motion was now made, on the part of the defendant, to set aside that inquest, and all subsequent proceedings, for irregularity; and 6 John. Rep. 19 , 2 Dunl. Pract. 686, and 4. Cowen%5ZQ, 540, were cited in support of the motion.
./. Watson, for the motion.
J. Fleming, jun. contra,
"We held, (4 Cowen, 540,) that a single affidavit of merits extends throughout the whole progress of the cause; that there is no need of one at every circuit a£ which the cause may be noticed. This was, however, of a cause where there had been no change of venue. The affidavit filed at Onondaga was not notice to the circuit judge at Rensselaer; but it was notice to the attorney for the plaintiff. This was enough. A change of venue does not vary the principle. The motion must be granted. But as the precise point has not before been decided, we grant the motion without costs.
Motion granted.