Daniels v. Borst

Headnote

Where defendant removes the cause by certiorari from common pleas, and through Ms neglect the return to the writ is not made in season to try the cause at the first circuit after the writ is brought, and it appears that it might have been done, although the return day of the writ was subsequent to the circuit, a motion by defendant for a change of venue, subsequent to the return of the writ, will be denied with costs, on the ground of delay.

Motion by defendant to change venue.

This suit was commenced in the Niagara common pleas, where the venue was laid. On the 9th of June, 1845, issue was joined in that court. The action was assumpsit on a promissory note. Defendant removed the cause into this court by a writ of certiorari, returnable at the last October term of this court. Defendant’s papers stated special reasons for changing the venue to the city and county of New York. Plaintiff’s papers showed that the certiorari was tested in July term, and returnable at October term, 1845, in this court. On the 15th August, plaintiff’s attorney served notice of trial on defendant’s attorney, for the next term of Niagara common pleas, on the first Monday in September. On the 18th of August, defendant’s attorney served notice that the cause was removed by certiorari into this court. On the second Monday of October, 1845, a circuit court was held in and for Niagara county; one week before the return day of the writ of certiorari. After the certiorari was brought, and before the return day, plaintiff’s attorney endeavored to get the clerk of

Niagara county to make return to it, but could not do so, as the clerk said that defendant’s attorney had not filed his plea and notice, but said he would *do it when it should become necessary for him to make his return; the clerk said he could not make return to the writ until defendant’s plea and notice was filed. On the 22d December last, the return was filed with the clerk of this court. On the 24th December, plaintiff’s attorney noticed the cause for trial at the circuit to be held on, the second Tuesday of March. On the 27th December, defendant’s attorney served the papers for this motion.