Feakins v. Engel

Headnote

Plaintiff may amend his declaration, changing the venue, on terms, where the motion is made before the cause is reached on the calendar. He is not bound to discontinue.

Motion to amend the declaration, by changing the venue from Otsego to Schoharie.—The declaration being for an action on the case for injuries to the person. Plaintiff’s attorney supposing by a late statute the

6] action was transitory, the cause of action arising in the county of Schoharie. The defendant pleaded general issue. The cause waS noticed for trial at Otsego circuit, and before being reached on the calendar, plaintiff’s attorney discovered his mistake in the venue, and offered defendant’s attorney costs of circuit and witnesses, to allow him to change the venue to Schoharie county. Defendant’s attorney declined the proposition, and alleged plaintiff was bound to discontinue the suit.