next term after; and the defendant to plead to the new action as he should have done, without delay. R. Mich. 1654. sect. 5. “That the venue may be changed "(upon oath), though the defendant come in by exigent." Ibid. May be The venue may be changed after an order for time to changed, after order for time, plead, though upon the terms of pleading issuably; but but not when not after such an order when the terms are to plead upon terms of issuably, and take short notice of trial for the first short notice. sittings in London or Middlesex, because there a trial would be lost. Cowp. Rep. 511. Petyt v. Berkeley, Esq. Shipley v. Cooper, 7 Term Rep. 698. S. P. If you obtain time to plead, the general mode is, to have it inserted in the order," to be at liberty to change the venue." Nor when on terms to try the first sitting in Middlesex. Though plaintiff cannot change the venue, yet he may do it by amen ding. Amendment allowed in a penal action by altering the venue after remanet. The defendant obtained a rule to change the venue from Middlesex to Gloucester, where the cause of action arose; motion to set it aside. It was objected to, because the defendant was too late, inasmuch as he had previously applied for, and obtained an order to try the first sitting in Middlesex. The action was for words spoken at the time of an election for Gloucester, and it was said there could not be a fair and impartial trial. Lord Mansfield said, upon either ground, the rule for discharging the rule obtained, should be made absolute. Согер. 511. Though the plaintiff cannot regularly move to change the venue, yet he may in effect do it by moving to amend, and it was done by striking out Dorsetshire, and inserting Middlesex. Stroud v. Tilly, Str. 1162. The court suffered the plaintiff to amend the venue, after defendant had changed it upon the common affidavit, ib. 1202. but never suffer it to be changed in debt, ib. 878. Duplissis v. Chalk, Str. 878. Fitzgib. 166. Barn. 379. An amendment was allowed in an action for a penalty on the bribery act, 2 Geo. 2. c. 24. s. 7, after cause made a remanet, from Yorkshire, to Kingston upon Hull, it having been discovered that the solicitation of the bribe was there. Petre v. Croft, 4 East, 432. Dover v. Mestaer, S. P. 435. In the C. P. the defendant cannot move to change the venue after having moved to put off the trial on account of the absence of a material witness. 2 New Rep. 58. Pearse v. Pocklington. THE METHOD OF MOVING TO CHANGE THE VENUE. venue. No notice is necessary to be given to the plaintiff's at- How to move torney, previous to the motion to change the venue, but to change the the client makes the following affidavit; which give to counsel, with 10s. 6d. for him to move; the rule is absolute in the first instance; in the evening draw up rule, pay for the same 6s. 6d. filing affidavit if sworn in the country, 2s. serve copy on plaintiff's attorney; the plaintiff's attorney will alter the declaration; if he does not, it will be considered as altered by the rule. All rules for changing the venue in any action, should When rules to be drawn up upon reading the declaration. Reg. Gen. be drawn up. Trin. Term, 1809. 11 East, 273. After changing the venue, the defendant must plead, After venue as he should have done before, without delay. R. M. changed, when to plead. 1654. s. 5. In the King's Bench. A. B. plaintiff, C. D. defendant. C. D. of the above-named defendant, maketh Affidavit. oath and saith, That the plaintiff's cause of action, (if any) mentioned in the declaration in this cause, arose in the county of S. and not in the county of K. (a) or elsewhere out of the county of S. Sworn, &c. A. B. V. C. D. C. D. Upon reading the affidavit of the defendant, Rule to By the Court. venue. If in vacation, apply to a judge for an order, which How in vawill be made on producing the affidavit with a counsel's cation. band, the plaintiff being at liberty to change the same back again, on undertaking to give evidence in the for (a) (Where the venue is laid.) N. on R. M. 10 Geo. 2. Reg. 2. Sty. P. R. 543. Lil. P. R. 782. The affidavit must be positive, and not to be ief: and may be made by one defendant, although there be more. Barn. 482. Upon plaintiff's under taking to give evidence of some matter in issue arising in the county, the rule to change the venue will be discharged. Formerly held plaintiff must bring back mer county, counsel 10s. 6d. rule 6s. 6d. serve it on plaintiff's attorney. By original the venue cannot be changed, but on condition, that defendant does not assign the want of an original, for error. Of bringing back the Venue by the Plaintiff. Notwithstanding the defendant has it in his power to remove the venue from the place laid, to the place where the cause of action arose, the plaintiff may, on shewing cause, "undertake to give material evidence of some "matter in issue, arising in the county wherein the "action is laid:" in that case, the rule will be discharged; but if at the trial he fails therein, he must be nonsnited. 2 Black. Rep. 1031. For it is not enough to say, that the witnesses to prove the contract resided there. Ibid. Where the venue has been changed in an action brought by the assignee of a bankrupt, the plaintiff's undertaking upon bringing back to Middlesex, is satisfied, by the production of the commission of bankruptcy, tested at Westminster. Kensington, assignee of Thomas Chantler, a bankrupt, v. T. Chantler the younger, 2 Maule and Selw. 36. It was formerly holden, that as the defendant must move to change the venue before plea pleaded; so the plaintiff must in like manner move to discharge the rule, the cause before replicaon undertaking to give material evidence, before replicaDickenson v. Fisher, Str. 858. But now it is tion, but now tion. it is otherwise. otherwise, as appears by the following case. The venue back after two trials, on plaintiff's un dertaking to give material evidence in London. After the venue had been changed from London to Linwas brought colnshire by defendant, the cause had gone down to trial at Lincoln assizes, where the plaintiff was nonsuited. New trial directed. The cause went down a second time to the assizes at Lincoln, and made a remanet for defect of jurors. There was a rule obtained for bringing back the venue to London, upon undertaking to give material evidence there. The objection made was, that it was too late after all these proceedings, and therefore the defendant moved to discharge that rule. Lord Mansfield said, we desired the master to inquire into the practice, whether the plaintiff could bring back the venue after plea pleaded. He has met with two cases in Str. 858. Dickenson v. Fisher; and 162. Stroud v. Filly. We think it an idle circuity to put the plaintiff to move to amend his declaration, in order to come at an alteration in the venue and if we permit him now to bring it back, he does it at his peril, because if he does not give material evidence in London, he must be nonsuited; and if it should appear to be a local action by statute, he will be nonsuited upon the opening. The former rule must stand, and take nothing by the latter. Bruckshaw v. Hopkins, Cowp. Rep. 409. The undertaking is absolutely necessary, for it is not sufficient for the plaintiff to swear that his cause of action arose where the venue is laid. French v. Coppinger, 1 H. Black. Rep. 216. sufficient. Action of assumpsit, the venue was changed by a rule Rule for payof court from Middlesex to London, and the rule was ment of afterwards discharged on the plaintiff's undertaking to money into give in evidence some matter in issue, arising in the court held county of Middlesex, where the action was first laid; after which the defendant paid 717. into court. The plaintiff produced an office copy of the rule, and the judge was of opinion that it was sufficient. Watkins v. Towers & others, 2 Term Rep. 276. So if the cause of action arose abroad, it is sufficient to prove it. Gerard v. Roebeck, 1 H. Black. Rep. 280. The rule to change the venue was obtained, and the If the issue is plaintiff's agent altered the issue accordingly, and deli- altered, canvered it over; and then he applied to bring back the not be brought venue to Middlesex: the court discharged the rule nisi but without costs. v. Boddington & al. M. 20 Geo. 3. cited in Cromp. back. Originally it was required, that the plaintiff should Formerly it give no evidence at the trial, but what arose in the county was required wherein the venue was retained. 1 Keb. 189. 1 Sid. 442. dence in the to give eviIf he gave none such, he must have been nonsuited of county wherecourse. But when it was laid down in Swain's case, in the venue 1 Sid. 405. that the plaintiff might lay his venue in any was retained, county wherein part of the cause of action arose, he was ed. then bound only to give some evidence, and not the But since whole, in the county where the venue was laid, Salk. 669. bound only to 12 Mod. 515. which continues to be the rule at this day. give some eviAnd if the plaintiff fails to make good his undertaking, dence; or be nonsuit he is nonsuited now, which has the same effect as judg- or be nonsuitment for the defendant in a plea in abatement, viz. quod ed. eat sine die, and the plaintiff must begin again. 2 Black. Rep. 1034. If changed on a false affida vit. But in such case plaintiff must give the usual undertaking. If the venue be changed by defendant, on the usual affidavit, when in fact it turns out part of the cause arose in another county, the court will order the venue to be brought back to the original place where laid. Cailland v. Champion, 7 Term Rep. 205. But though the venue be changed by the defendant upon a false affidavit, yet the court will not suffer the plaintiff to bring it back again into the county where first laid, without the usual undertaking, to give material evidence in that county. Price, Bart. v. Woodburn, 6 East, 433. Rule for bring- A. B. ing back the venue. V. Upon reading the rule to change the venue, and upon the undertaking of the plaintiff to give C. D. material evidence of some matter in issue arising in the county of (the county the action was first laid) it is ordered that the said rule be discharged. Upon the motion of Mr. What. Cannot be given on a Sunday. When Sunday RULE TO PLEAD. THE rule to plead is an order of the court, and intended to give the defendant notice when he is to plead. But if the defendant obtain a rule of court, or an order from a judge, for time to plead, this excludes any presumption that the plaintiff has not given him such notice: therefore in such case the court have held a rule to plead unnecessary. Starkie v. Wilkes, M. 7 Geo. 2. Anciently they were two rules to plead given of four days each; the first ad respondendum; the second ad respondendum peremptorie. 2 Salk. 517. These were afterwards converted into one eight-day rule, ibid. But now by rule, Trin. 1 Geo. 2. four days only shall be allowed the defendant from the time of giving any rule to plead. When the rules to plead ran for eight days, the course of the court was to allow the four first only for pleas in abatement; but as to pleas in chief, it was sufficient if they came in any time before judgment signed. Long v. Miller, 2 Str. 1192. The rule to plead cannot be given on a Sunday, or on the Purification; and if the rule expires on a Sunday, the defendant has all the next day to plead in. 1 Str. 86. Anon. But may now be given the day the declaration is filed, or delivered. In rules to plead in actions in general, a Sunday or a |