
    [*] KERR against WHITAKER.
    Change of venue, on common affidavit, refused.
    The counsel for the defendant, moved to change the venue from Sussex to Essex, on the common affidavit that the cause of action, if any, arose in the county of Essex, and not in the county of Sussex, or elsewhere out of the county of Essex.
    This was opposed by the counsel for the plaintiff; he said that the practice in England of changing the venue on the common affidavit, was founded on statute, [389] and not on the common law; for which he- cited, J. Bur. 21^7, 2 Show. 189, 2 Bloc. Hep. 1032; that in England, the court cannot change the venue to any county, except to the county where the cause of action arose, Barnes’ Nates, 491, Andrews 69, Sayer 7; that our act permitted the court to depart from that rule in pursuit of the residence of the parties; or if the defendant is a stranger, the place where process was served on him; that the practice in the State of New York, was to require special circumstances to be made out and laid before the court, on which they would exercise their discretion, 3 Cains, 95, 2 John. 453; that this question had already been decided in the case of Smith v. Bashford.
    
    Kirkpatrick, C. J., and Rossekl, J. — Were clearly against the rule.
   Pennington, J.

It istrue, a rule to change the venue on a common affidavit has been refused in the case of Smith v. Bashford, some considerable time ago. I inclined to think at that time, and have not changed my opinion since, that the rule to change the venue on the common affidavit, owes its origin to the principles of the common law; that causes should be tried by the neighbors where the matter was transacted, and the cause of action arose. The English statute is in furtherance of that principle, and our act of Assembly does not impair it, but was made to restrain plaintiffs from capriciously laying the venue in any remote corner of the [*] State, to the oppression and vexation of defendants ; but I cannot perceive why the court, in exercising the discretion vested in it by the statute, should not adhere to the common law principle of trying the controversy where the cause of action arose, by a jury of the neighbors, which the changing the venue on the common affidavit is intended to effect. But the case of Smith v. Bashford, and the opinion of my brethren at this time, has settled the point; so that in future it must be understood that the venue in this court will not be changed on the common affidavit, but that on all motions to change the venue, special circumstances must be made out by affidavit, on which the court will exercise the discretion which the statute has invested them .with. Rule refused. 
      
       The English statutes on the subject are short, and as follows: VI. Richard the II. c. 2. “ To the intent that writs of account, and all other such actions, be from henceforth taken in their counties, and directed to sheriffs of the counties where the contracts of the same action did arise; it is ordained and accorded, that if from henceforth in pleas upon the same writs, it shall be declared that the contract thereof was made in another c.ounty than is contained in the original writ, that then incontinently, the same writ shall be utterly abated.” This not expressly forbidding the writ to be sued in a foreign county, 4 Henry 4, c. 18, directs all attorneys to be sworn, “ that they make no suit in a foreign county.” Our act of assembly, on the same subject, Pat. 393, is as follows: “That an action merely transitory, shall, at the discretion of the court, be tried in the county in which the cause of action arose, or the plaintiff or defendant reside at the time of instituting such action; or if the defendant shall not be an inhabitant of this State, in the county in which process shall have been served against him.”
     