Morgan v. Lyon — 12 Wend. 265

Majority

p. 265

Morgan vs. Lyon.

Headnote

A defendant, not within the purview of the statutes declaring certain actions local, is not entitled to ask a change of venue oñ the ground that the action is local; his remedy is by demurrer, plea in abatement, or nonsuit at the trial.

The defendant in this case moved to change the venue from Oneida to Cattaraugus, on an affidavit that he had twelve witnesses residing in the latter county. T heplaintiff swore that he had thirteen witnesses residing in Oneida, and stated in addition that the suit was for a malicious prosecution ; that the defendant had maliciously and without cause procured a criminal warrant to be issued by a justice of the peace of the county of Cattaraugus, upon which the plaintiff was arrested in the county of Oneida and carried to Cattarugus, and there discharged without any further proceedings. The defendant insisted that the cause of action, if any, arose in Cattaraugus, and that the action is local.

February 5.

By the Court,

The question whether the action be or be not local, cannot be agitated on this motion. If it appear on the face of the declaration that the action is local

p. 266

and the venue is laid in a wrong county, the defendant may demur . jf ^ joes not s0 appear, he may plead the fact in abatement, or avail himself of the mistake by nonsuiting the P^a’nt^ at trial. 1 Chitty’s Plead. 284. 12 Wendell, 51. Where a public officer is sued foracts done by him by virtue of his office, and he qsks to have the venue changed to the county where the fact complained of happened, the venue ought to be changed ; but a party, not within the purview of the statutes declaring certain actions local, is not entitled to urge a change of venue on the ground of the action being local, but must resort to one or other of the remedies above suggested.

Motion denied.