
    Duryee against Orcott.
    
      ALBANY,
    
    August, 1812.
    A. hired a chess county, aéyto Jiiíany, and sold him tot^ county,^ Into femada. ^OT xras0f mlnerand the venue was stesl it piaeVwliere6 the cause of -was, prima fáwhere6 theC6' venue ought siveiy, and material witlngSthere|She" sarry 'the mte there; and. 3ic cannot deve-'ed of less thf plain." tiff stipulates to give evidence arising where hechas material wit!ngSin thaf" sounty, ant shows where the laid the venue* andstat.es also, hy affidavit, that he has 7
    H. BLEECKER, for the plaintiff in error, moved that the rule obtained at the last term, to change the venue, in this cause, from county of Dutchess to the county of Washington, be vacated,
    The action was tr.over for a horse, chair and harness. The afndavit of the plaintiff stated, that in July, 1811, he let the horse, &c. in Rhinebeck, in Dutchess county, to a person of the name of Phillips, to go to Albany, whe was to return in three or four days, no returns the plaintiff went in pursuit of him, and found that he had gone to Canada, and, in passing through Cambridge, Washington county, had sold the horse, &c. in that place. The plaintiff found them in possession of the defendant, and claimed them as his properly, but the defendant refused to deliver them, alleging he had purchased them at a fair price, unless the plain. tiffwould pay him the price.
    The plaintiff alsn slated, that lie had siw witnesses, whom he
    The rule for changing the venue had been obtained at the last term, m consequence of some error m the affidavit of the plaintiff s attorney, intended to be used in opposition, and neglecting to insiruci the counsel, as to the motion.
    
      D. Russell, contra, read an affidavit of the defendant, stating that tlie cause of action, if any, arose in the county of Washington, and not in the county of Dutchess, and that he had as many as ten witnesses, whom he named, residing in Cambridge, in the county of Washington, whose testimony was material on the trial of the cause.
   Per Curiam.

In Ross v. Lown, (8 Johns. Rep. 354.) the court said, that thg rule laid down in Manning v. Downing, (2 Johns. Rep. 453.) had not been extended to a case for trespass tie bonis asportatis ; and in that case, we adopted the practice of the king’s bench, in England, and required the plaintiff to stipulate to give material evidence arising in Onondaga, to entitle him to retain the venue there, it appearing that the plaintiff had two witnesses residing in Onondaga, and the defendant four in Saratoga, in which latter county the cause of action arose.

There are transitory actions, in which the venue is altogether optional with the plaintiff. In this class we have placed, generally, all actions arising on contract. It includes, also, actions arising beyond sea, or out of the state, for libels dispersed in several counties, for escapes, or false returns, against a carrier, on a specialty, note, or bill of exchange, and wherever the cause of action is not wholly, or necessarily, confined to a single county. In these cases, the venue will not be changed, but upon special grounds, as where the witnesses of both parties reside in the county to which the defendant wishes to bring the venue. If the plaintiff’s witnesses reside in the county in which he has laid the venue, unless there is a great and striking preponderance against him, the venue will not be changed.

In trover, the plaintiff has not an option as to the venue. The place where the cause of action arose is, prima facie, the place where the venue ought to be'; and if the defendant shows, by affidavit, where the cause of action arose, exclusively, and that he has witnesses material to his defence residing in that county, he has a right to have the venue there. The plaintiff cannot devest him of this right, but by stipulating to give evidence arising in the county where he has laid the venue, and, in addition to that, stating, by affidavit, that he has witnesses material to his cause residing in that county. In the present case, the plaintiff having witnesses in the county of Dutchess, let him stipulate to give evidence arising in that county, and let the venue be carried back there.

Buie accordingly. 
      
      
        1 Tidd's Pr. 174.
      
     