defendant should have moved for a dismissal of the cause, if reached during the term in which the plaintiff's notice was received, or, if not, then at the special term; and that he could recover no costs for the subsequent notices, which were characterized as a needless proceeding.

It is, of course, competent for a plaintiff to move to dismiss his own complaint at any time before trial, on payment of costs to the defendants who have appeared, and possibly without such payment, under circumstances of hardship, where he has been taken by surprise by the defence; as, for instance, by the pleading of an insolvent's discharge, when the fact of such insolvency was unknown to him at the time the suit was first brought. A plaintiff, however, who has once obtained a decree, cannot afterwards obtain an order to dismiss his own bill, unless with the consent of all the defendants.-Picabia v. Everard, 4 How. 113.

CHAPTER III.

OF THE CHANGE OF VENUE.

THIS subject has been partially entered upon in a previous chapter, in reference to the ordinary application, on the ground of the venue being laid in a wrong county, on demand to that effect under section 125; that form of proceeding can only, however, be adopted before answer, as there provided. The application now in question is of a totally different nature, and is inadmissible altogether at that stage of the action, resting as it does on totally different grounds.

In the Codes of 1848 and 1849, no provision whatever was made as regards this branch of the subject, though relief of that nature was uninterruptedly administered by the courts, under their former powers. Express provision is, however, now made by the amendment of 1851, in the latter portion of section 126, which runs as follows:

The court may change the place of trial in the following cases:

1. When the county designated for that purpose in the complaint is not the proper county.

2. When there is reason to believe that an impartial trial cannot be had therein.

3. When the convenience of witnesses and the ends of justice would be promoted by the change.

When the place of trial is changed, all other proceedings shall be

The cases as to the proper time for making an application of this nature, are numerous and contradictory. Those of Beardsley v. Dickerson, 4 How. 81, Schenck v. McKie, Id. 246, 3 C. R. 24, and Myers v. Feeter, Id. 240, lay down the position, that the defendant may make such an application, after answer and before reply, and therefore before issue is finally and formally joined in the cause. These decisions rest upon the ground that, before issue joined, the circumstances on which such a motion may be grounded, will necessarily be known to the parties, and that, accordingly, there exists no sufficient reason why the application should not be made at once.

On the other hand, the doctrine that such a motion cannot be properly made until after the pleadings are complete, and issue fully and finally joined, is laid down in the following decisions, optionally in the first of them, and positively and unconditionally in the others, viz.: Lynch v. Mosher, 4 How. 86, Clark v. Pettibone, 2 C. R. 78, Barnard v. Wheeler, 3 How. 71, Mixer v. Kuhn, 4 How. 409, 3 C. R. 106, Hartman v. Spencer, 5 How. 135 which last cases overrule in terms the decisions other side of the question, and that

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safer course in practice; the more so as, even by the cases in opposition to that doctrine, it is admitted that the motion can be made, and properly made, at that stage of the litigation. It seems, accordingly, to be settled by the authority of the cases last cited, that the period of the action immediately succeeding the joinder of issue is the proper time for making an application of this nature. The same conclusion is clearly contemplated by Rules 47 and 48 of the supreme court, which provide as to the practice in these motions. The necessity of the application being made with due diligence, is enforced by the former of those rules. See also Lynch v. Mosher, above cited, in which the practice under the Code of 1849 is fully and distinctly laid down. For the future, however, the positive enactments now made will govern.

The application must be made upon notice of motion, which should be in the usual form, following the exact words of the subdivision on which the application is grounded, and it should include in its terms an interim stay of proceedings, if such stay be requisite, as, otherwise, no measure on the part of the plaintiff will be suspended, except only the actual preparations for trial. See rule 47. A form is given in Appendix. The motion must, as before stated, be made with all possible diligence.

The proceeding is, in all respects, similar to that under the old practice, the books as to which, and the cases there cited, should be consulted. See, in particular, Note at 4 Hill, 62, (Brittan v. Peabody.)

It must be grounded on affidavit made by the party himself, or reasons shown why it is not so made, in the same form as was usual under the former practice; and, as heretofore, it is absolutely essential that the usual affidavit of merits should either be incorporated in, or should accompany that moved on. See Lynch v. Mosher, 4 How.86; 2 C. R. 54; and Mixer v. Kuhn, 4 How. 409, before referred to. See also, Jordan v. Garrison, 6 How. 6. The affidavit of merits and its requisites will be found considered hereafter, under the head of Preparations for Trial.

Rule 48 provides as to the form of such affidavit in other respects, and runs as follows:

"In addition to what has usually been stated in affidavits concerning Venue, either party may state the nature of the

controversy, and show how his witnesses are material; and may also show where the cause of action, or the defence, or both of them arose; and those facts will be taken into consideration by the court in fixing the place of trial."

Though couched in language of permission, the above Rule amounts, in fact, to a requisition that the affidavits on such an occasion should be explicit on the points there referred to.

On the motion under subdivision 2, it will evidently be necessary to make out a very clear case, showing that an impartial trial cannot be had in the district nominated by the plaintiff. The bias of the courts will be strongly in favor of retaining the place of trial, unless "the inability to obtain a fair and unprejudiced jury be clearly established." The People v. Wright, 5 How. 23; 3 C. R. 75. The mere existence of excitement in the county, and of the matter in question having been the subject of newspaper discussion, and the expression of the belief of the witnesses who swore to those facts, that it was "very doubtful" whether a fair and impartial trial could be had in the county of venue, were there considered insufficient grounds for a change, on the ground of local prejudice. The cases under the old practice will be found collected in the opinion. The exertion of undue or improper influence on the part of one of the parties, if sworn to, would, however, in all probability form a sufficient ground for such a motion.-V. The People v. Webb, 1 Hill. 179, as there commented upon.

The same case, i. e., The People v. Wright, is very explicit upon the subject of motions under subdivision 3, i. e., for a change on the ground of the convenience of witnesses. The county in which the majority of the witnesses reside, irrespective of the distance which those witnesses might have to travel, was there held to be the governing principle in all instances; and the case of Hull v. Hull, 1 Hill, 671, is referred to as settling the practice in this respect. The conclusion of the court is laid down in the following terms: "It appears, then, that there is a very large number of witnesses residing in the county of Rensselaer, whose convenience will be best promoted by trying the cause there, and that all the facts to be inquired into arose in that county. That is, therefore, emphatically the proper place for trial,"

If, however, it is patent upon the pleadings, that the issue on which witnesses, resident in another county, are alleged to be

requisite, is obviously untenable, the motion will be denied. -Hartman v. Spencer, 5 How. 135.

The earlier cases on the subject of venue in general, will be found collected, 4 Hill, p. 62, 9 et seq. in the note to the case of Brittain v. Peabody, above referred to. It is clear from them that, if the defendants positively swear to a greater number of material witnesses than the plaintiff, the change of venue is, cæteris paribus, almost as of course. The plaintiff, in opposing such a motion, must make, too, an unqualified affidavit.--Sherwood v. Steele, 12 Wend. p. 294. In that case plaintiff swore to one more witness than the defendant, but in a qualified manner, under which circumstances the motion was granted. Although the greater number of witnesses is the more usual element which will govern the decision, it will not do so as of course in all cases. The value of their testimony, to be shown under the advice of counsel, will also be taken into consideration with reference to the granting or denying such a motion. Anon., 1 Hill, 668. This last principle was fully carried out by Harris, J. in Barnard v. Wheeler, 3 How. p. 71, who states the law as follows: "In determining the question between the parties, a preponderance of witnesses, to say the least, should not be regarded as a controlling circumstance. The experience of the entire legal profession, for many years, has painfully proved, that very little can be learned from affidavits made upon a motion to change the venue, as to the real number of witnesses who will, in fact, be required to attend upon the trial of a cause. The courts are authorized to order the cause to be tried in another court, on good cause shown therefor. In determining whether such cause has been shown, the court can generally rely more safely upon the nature of the case to be tried, and upon the facts and circumstances, connected with the transactions which are the subject of investigation in the cause, than the number of witnesses sworn to be material by either party."

The advantage of the affidavit on which the motion is grounded being full and explanatory, is evidenced by the recent case of Jordan v. Garrison, 6 How. 6. The defendant there named sixteen witnesses, and swore specifically as to the testimony to be given by them. The plaintiff swore to eighteen witnesses in the county of venue, and also stated the effect of their probable testimony. Only one of those witnesses, however, appeared to be clearly necessary, and the plaintiff had not denied or